Custom, Excise & Service Tax Tribunal
M/S. Albert David Ltd vs Commissioner Of Central Excise, ... on 18 January, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 2892 of 2009-SM
Date of Hearing : 21/11/2012 Date of decision: 18 /01/2013
[Arising out of Order-in-Appeal No. 206/CE/GZB/2009 dated 27.8.2009 passed by the Commissioner (Appeals), Customs, Central Excise, & Service Tax, Ghaziabad ]
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For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 : Yes
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
M/s. Albert David Ltd.
Applicant
Vs
Commissioner of Central Excise, Ghaziabad
Respondent
Present for the Appellant : Shri D. Chitlongia, GM
Present for the Respondent : Ms. Shweta Bector, Advocate
ORDER No.A/FO/55331/2013-Ex(Br)
Per Archana Wadhwa :
After hearing both sides, I find that the dispute in the present appeal relates to claim of interest in respect of refund of pre-deposit made by the appellant. For better appreciation the list of event as placed on record by the appellant are being reproduced below:-
Sr. no.
Date Event 1 17/01/2005 Hble CESTAT allowed appeal no. E/299/04-C resulting in refund of Pre-deposit of Rs. 75,000/- made on 03/06/2003 2 19.04/2005 Application for refund filed-claiming interest from 90 days from the date of order passed by Hble CESTAT 3 03/10/2005 Refund granted without interest and wrongfully adjusted against demand arising out of OIO no. 34-35/JC/gzb/dt. 25/01/05.OIA no. 91/CE/GZB/2005 passed on 30/06/2005, appealed before Hble CESTAT on 04/10/2005, within statutory time.
408/11/2005 Hble CESTAT passed order for Pre-deposit in OIA no. 91/CE/ GZB/2005, complied as per judgment of Hble High court.
530/11/2005 Appeal filed before Comm. (A) for wrongful adjustment of refund amount & claiming interest on the pre-deposit amount 6 28/04/2006 OIA received rejecting appeal for wrongful adjustment & rejecting interest claim.
721/07/2006 Appeal filed before Hble CESTAT-E/2465/2006 for wrongful adjustment & claiming interest 8 22/07/2008 OIA set aside by Hble CESTAT-by setting aside adjustment of refund and remanding the matter to Asst. Comm.
904/08/2008 Application filed before Asst. Comm. for refunding Rs. 75,000/- along with Interest as per orders of Hble CESTAT (setting aside adjustment of refund) 10 21/05/2009 Received OIO no. 36 dt. 15/05/2009 granting refund of Rs.75,000/-. Interest not granted.
1124/07/2009 Appeal filed before Comm. (A) for grant of interest.
1207/09/2009 OIA received granting interest, treating Hble CESTATs order dated 01/07/2008, as final order. Factually refund arose as per order mentioned at sr. no. 1 above.
1330/10/2009 Present Appeal before Hble CESTAT for grant of interest from (90 days after) 17/01/2005.
1423/09/2010 Interest paid by the dept. as per OIO no. 116R/2010-11 from 01/10/2008 to 15/05/2009 for 227 days 15 Correct calculation of interest filed during PH before Hble CESTAT, realizing mistake in rate of interest while filing appeal.
1617/07/2012 Hble Court asked to submit list of Events in proper manner
2. As is seen from above, the appellant became entitled to the refund of pre-deposit made by them on success of their appeal vide Tribunal Order No.157/2005-C dated 17.1.2005.
3. Said application for refund was filed by them on 19.4.2005. The refund was granted but the same was adjusted against the outstanding demand. It is also seen that demand against which the said refund was adjusted was quashed subsequently in a separate set of proceedings. The refund stand given to them by the Revenue in terms of Tribunals order dated 1.7.2008 alongwith interest from the said date. However, the appellants contention is that the interest should have been paid within a period of 90 days from the date of passing of order from 17.1.2005.
4. I find that the issue is no more res integra. Admittedly, the appellant was entitled to refund of pre-deposit within a period of 3 months from the passing of favorable order. Though the said refund was sanctioned but the same was adjusted against the outstanding demand. As such, for all practical purposes the amount of Rs. 75,000/- deposited by the appellant was not returned to them. Honble Gujrat High Court in the case of Nijrang Print Pack Pvt. Ltd. Vs. UOI reported as [2005 (184) ELT 11 (Guj)] has in an identical circumstances held that the interest would be liable to be paid within a period of 3 months from passing of favorable orders. To the same effect is the decision of the Tribunal in the case of L & T Ltd. Vs. CC Ahmedabad [2005 (08) LCX 31] as also in the case of Steelco Gujarat Ltd. Vs. CCE, Vadodara [ 2008 (07) LCX 244].
5. By following the said decision, I set aside the impugned order and allow the appeal with consequential relief to the appellant. The original adjudicating authority would quantify the interest by treating the order dated 17.1.2005 and the refund application filed thereafter as the relevant dates.
6. The appeal is disposed of in the above terms.
(Pronounced in the Court on 18/1/ 2013 )
( Archana Wadhwa ) Member(Judicial)
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