C.C.E. Delhi-I vs M/S. Alkarma

[Arising out of Order-in-Appeal No. 01-30CE/DLH/2007 dated 18.01.2007 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Delhi].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. Delhi-I .Appellants

Vs.

M/s. Alkarma .Respondent

.

Appearance:

Shri M.S. Negi, DR for the Appellant

Shri P.K. Rai, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

Date of Hearing: 05.08.2015

FINAL ORDER NO. 52486/2015-EX(DB)

Per Ashok Jindal:

The Revenue is in appeal against the impugned order wherein the Ld. Commissioner (A) has granted claim of interest on account of delayed refund to the respondent.

2. The facts of the case are that initially the respondent intimated to the Revenue that as their appeal has been allowed by way of remand by this Tribunal wherein the order in challenge was set aside. Consequent to that respondent intimated to the Revenue to return the amount of pre deposit made by them while entertaining their appeal by this Tribunal. The Adjudicating Authority sanctioned the refund claim but same was sanctioned beyond three months of the order of this Tribunal dated 27.04.2006. The respondent filed the claim of interest on account and delayed refund beyond the period of three months after date of the order dated 24.07.2006. The Adjudicating Authority rejected the claim of interest on the ground that interest is payable after the expiry of three months or the date of filing of the refund claim not after three months of the date of the order of this Tribunal. It was also held that amount paid during the investigation cannot be treated as pre deposit. On appeal before the Ld. Commissioner (A) the Ld. Commissioner (A) granted interest on refund claim after three months from the date of the order of this Tribunal. Aggrieved from the said order Revenue is before us.

3. Heard the parties.

4. The issue has been settled by the Honble Apex Court in the case of ITC Ltd. Vs. CCE Hyderabad-2005 (179) ELT 15 (SC) wherein Honble Apex Court has observed that Having regard of the contents of the draft circular we direct compliance with the final order impugned before us and payment of interest in terms of draft circular. We further observed that draft circular has been converted into Circular No. 805/35/2004-CE dated 08.12.2004 wherein it has been stated that pre deposit must be returned within three months from the date of the order passed by the Appellate Tribunal / Court or other final authority unless there is a stay on the order of the final authority / CESTAT. Admittedly there was no stay on the order of this Tribunal when matter was remanded for de novo proceedings. Therefore, as per the CBEC circular dated 08.12.2004 the Revenue required to pay interest after three months from the date of the order of this Tribunal.

5. Revenue has contended that amount of 30 lakhs paid from the appellant during the course of investigation is not a pre deposit therefore on the said amount interest is not payable. We find that while entertaining the stay application by this Tribunal the respondent were required to make a pre deposit of further 20 lakhs apart from 30 lakhs already paid by them. Therefore, tener of the stay order is that appellant were directed to make pre deposit of 50 lakhs for entertaining their appeal. In these terms, we hold that amount of Rs. 30 lakhs paid by the Respondent is a part of pre deposit.

6. With these observations, we do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the Revenue is dismissed.

0

(Dictated and pronounced in the open court)

(B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial)

Bhanu

2

E/1126/2004-EX(DB)