Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Itw India Pvt. Ltd on 23 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No .27147 / 2013 Appeal(s) Involved: ST/737/2009-SM [Arising out of Order-in-Appeal No. 08/09 (H-I) dated 28/05/2009 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals) Hyderabad] Commissioner of Central Excise, Customs and Service Tax - HYDERABAD-I KENDRIYA SHULK BHAVAN, L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, ANDHRA PRADESH-500004 Appellant(s) Versus ITW INDIA PVT. LTD. 3RD FLOOR, MERCHANT TOWERS-5,ROAD NO.4, BANJARA HILL, HYDERABAD, ANDHRA PRADESH Respondent(s)
Appearance:
Mr. A.K. Nigam, A.R. For the Appellant Mr. I.S. Karthikeyan, Adv For the Respondent CORAM:
HONBLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Date of Hearing: 23/12/2013 Date of Decision: 23/12/2013 The question involved in this appeal is whether the appellant is entitled to interest from the date of three months after the date of filing the refund claim or from the date on which the matter was finally decided in favour of the appellant by the Tribunal. The Tribunals order deciding the issue in favour of the appellant is dated 15th October 2008. The original adjudicating authority sanctioned the refund on 30th December 2008 i.e. within three months from the date of the order of the Tribunal. Appeal filed by the appellant was rejected.
2. Heard both sides.
3. In this case the respondent had paid service tax under the category of business auxiliary service and cargo handling service during the period from 10.10.2004 to 16.06.2005. With effect from 16.06.2005, a new service packaging service was brought into the service tax net. Appellant took the stand that they need not pay service tax which they had paid earlier and accordingly filed a refund claim for the service tax paid during the period from 31.12.2004 to 29.06.2005. There were three refund claims totalling to an amount of Rs. 40,38,682/-.
4. Even though the learned A.R. argued vehemently for some time and submitted that the matter has to be considered to have attained finality only with the order passed by the Tribunal as regards the service tax liability of the appellant, yet, I find that in this case what was in dispute was the refund claim. Once the refund claim filed by an assessee is considered and the refund is not sanctioned and subsequently, in the appellate proceedings if an assessee gets a decision in their favour, the interest will be payable as per the provisions of Section 11BB of Central Excise Act 1944 which provides for payment of interest after three months from the date of receipt of refund claim by the refund sanctioning authority. The issue is no longer res integra and has been settled by the decision of the Honble Supreme Court in the case of Ranbaxy Laboratories Ltd. Vs UOI [2011(273)ELT 3(S.C.)]. Learned A.R. relied upon the decision in the case of Jamshri Ranjitsinghji Vs CCE Pune-III [2010(250)E.L.T. 5369Tri-Mum).
5. After going through the decision I find that in that case refund application itself was filed on 27th February 2007 and the Tribunal held that interest is payable in respect of Rs 2,25,598/- from 21.7.2007 and in respect of an amount of Rs. 32,436/- from 13.06.2008. In that case there was a dispute about the correctness of the CENVAT credit availed by the appellant. As far as Rs. 32,436/- was concerned eligibility was upheld by the Commissioner (Appeals). Subsequently this decision made it clear that where refund claim itself is in dispute which is relating to Rs. 2,25,598/- the Tribunal took a view that three months after the date of filing refund claim, interest would be admissible and in respect of amount where the correctness of availment itself was in dispute, only after the matter was decided, the interest would be available. Therefore the decision cited by the learned A.R. also takes the same view as held by the Honble Supreme Court. Therefore, there is no doubt that the appellants are eligible for the interest from three months after the date of receipt of refund claim by the refund sanctioning authority. Therefore appeal filed by the Revenue has no merits and accordingly is rejected.
(Order dictated and pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER Pnr..
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