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Al Hamad Agro Food Products P. Ltd V/S Commr. of C., C.E. & S.T., Noida

    Misc. Order No. MO/70303/2017-CU(DB) in Application No. C/MISC/70321/2017 in Appeal No. C/70089/2015-CU(DB)

    Decided On, 28 September 2017

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Allahabad

    By, MEMBER

    For Petitioner: Satyavir Singh and Ishwar Singh, Advocate And For Respondents: Gyanendra Kr. Tripathi, Asstt. Commissioner (AR)

Judgment Text

1. This Tribunal vide Final Order No. 70307/2016, dated 14-6-2016 [2017 (352) E.L.T. 481 (Tri.)] had allowed the appeal and further directed to refund the amount with interest, as per rules. Subsequently, the Assistant Commissioner was pleased to grant the refund of the deposited amount but did not observe anything on the issue of interest in the refund order dated 13-6-2017. Being aggrieved, the applicant/appellant preferred present Miscellaneous Application under Rule 41 of the CESTAT (Procedure) Rules, 1982, before this Tribunal. Accordingly, this Tribunal vide its earlier Interim Order No. 13/2017, dated 3-8-2017 directed the concerned Assistant Commissioner -- Mr. Manbir Singh to comply with the directions of this Tribunal, as regards interest. Today when the matter was called, the learned AR for Revenue have submitted a copy of reply from the said Mr. Manbir Singh, Assistant Commissioner of Customs, Noida wherein he stated that under the provisions of Section 27A of the Customs Act, 1962, interest is payable only if the refund is not granted within a period of three months from the date of communication of the order of appellate Court. The learned Consultant for appellant stated that their case does not fall under the provisions of Rule 27A, as their appeal before this Tribunal was filed on 2nd November, 2015, when the substituted Section 129E was brought on statute with effect from 6-8-2014 and as such the amount deposited by them during investigation on 6-6-2013, becomes a deposit under Section 129E with effect from the date of filing of the appeal before this Tribunal. Accordingly, they are entitled to interest under Section 129EE (substituted with effect from 6-8-2014) which provides -- "where an amount deposited by the appellant under Section 129E is required to be refunded consequent upon the order of appellate authority, there should be paid to the appellant with interest at such rate, not below 5% and not exceeding 36% per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such amount from the date of payment of the amount till, the date of refund of such amount:

Provided that the amount deposited under Section 129E, prior to commencement of Finance Act, 2014 shall continue to be governed by the provisions of Section 129EE, as it stood before the commencement of the said Act."
1.1 Further it was pointed out under Notification No. 17/2014-C.E. (N.T.), dated 12 August, 2014 interest @ 6% per annum have been prescribed under Section 129EE of the Customs Act.

1.2 The learned Counsel has also relied upon the ruling of the Hon'ble Gujarat High Court in the case of M/s. Parle International Ltd. v. Union of India reported in : 2001 (127) E.L.T. 329 (Guj.) wherein under the similar facts and circumstances the Hon'ble High Court have observed that it is clear that the amount of duty shown in the bill is paid to the Revenue. Subsequent demand is on the ground of undervaluation, but department has miserably failed in establishing it. Therefore, it cannot be said that the assessee has recovered from its customers the amount subsequently deposited with the Revenue and thus enriched itself by collecting such amount from the customers. Thus, the amount has to be taken as deposit. Therefore, the Revenue was required to refund the amount of deposit with interest.

1.3 The Hon'ble High Court in the said order in para 21 has observed-"As we have said earlier, the amount of duty paid under Section 3 of the Act is the duty and whatever is claimed subsequently can be said to be duty only after the order passed by the adjudicating authority is finally confirmed. Till then it cannot be said to be amount of duty."

2. Heard the learned AR for Revenue and considered the submissions. Having considered the rival contentions, we hereby clarify that the appellant/applicant herein are entitled to interest, on the amount deposited, under the provision of Section 129E, read w

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ith [Section] 129EE of the Customs Act, 1962 @ 6% per annum, is hereby allowed, for the period from the date of filing of the appeal till the date of grant of refund. Thus, the Final Order No. 70307/2016, dated 14-6-2016 stands modified/clarified, as indicated herein above. We further direct the concerned Assistant Commissioner to grant interest to the appellant within a period of 30 days from the date of service/receipt of a copy of this order.