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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/Case Law/2014-15/2193

Availment of interest on delayed refund.

Case:-  STATE BANK OF INDIA V/S COMMMISSIONER OF SERVICE TAX, MUMBAI-I
 
Citation:- 2014 (34) S.T.R. 579 (Tri. – Mumbai)
 
Brief facts:- Briefly stated the facts were that the appellants were engaged in providing banking and other financial services and was also engaged in the business of purchase and sale of foreign exchange and having service tax registration no. AAACS8577KSTET1. They filed refund claim on 4-3-2009 amounting to Rs. 2,79,72,197/- on the ground of excess payment of service tax for the month of June, 2008. The lower authority returned the refund application with deficiency in it. The appellant after removing the deficiency re-submitted the refund claim on 26-3-2009. The lower adjudicating authority rejected the refund claim filed by the appellant. The appellant challenged the order before the Commissioner (Appeals). The Commissioner (Appeals) vides Order no. V2(A)/STC/312/2009, dated 30-3-2010 allowed the refund claim. Thereafter the appellant filed a claim for interest. The lower adjudicating authority vide order dated 20-7-2010 rejected the claim. Aggrieved by the same, the appellant filed appeal before the Commissioner Appeals) who vide his order dated 18-7-2012 rejected their appeal. Hence this appeal.
 
Appellant’s contentions:-The contention of the appellant was that they have filed the refund claim on 4-3-2009 and refund was finally sanctioned by the Commissioner (Appeals)vide his order dated 30-3-2010. Therefore, as per the provisions of section 11BB of the Central Excise Act, 1944 they were entitled for interest till receipt of the refund on 6-7-2010. In support of their contention, they have relied upon the decision of the Hon’ble Supreme Court in the case of Ranbaxy Laboratories Ltd. V. Union of India reported in 2011 (273) E.L.T. (S.C.) = 2012 (27) S.T.R. 193 (S.C.) and also the Hon’ble    Bombay High Court’s decision in the case of union of India through Maritime Commissioner of Central Excise v. Jindal Drugs Ltd. – 2012 (190) E.C.R 3 (Bombay).
 
Respondent’s contentions:- The learned Additional Commissioner (AR) reiterated the findings of the learned Commissioner (Appeals). However, he contended that the deficiency memo was issued to the appellant and they have removed the defects only on 26-3-2009.
 
Reasoning of judgment:- We have carefully considered the submissions and perused the records. The appellant was heavily relying upon section 11BB of the Central Excise Act, 1944, which reads as under:
SECTION 11BB. Interest on delayed refunds.-If any ordered to be refunded under sub-section (2) of section 11B to any applicant was not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that appellant interest as such rate, not below five percent and not exceeding thirty percent per annum as was for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty:
Provided that where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the president, was not refunded within three months from such date, there shall be paid to the application interest under this section from the date immediately after three months from such date, till the date of refund of such duty.
Explanation-Where any order of refund was made by the Commissioner (Appeals), Appellant Tribunal, National Tax Tribunal or any court against an order of  the Assistant of Central Excise or Deputy Commissioner of Central Excise, under sub-section (2) of the section 11BB, the order passed by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or, as the case may be , by the court shall be deemed to be an order passed under the said sub-section (2) for the purpose of this section.
The tribunal found that the appellant filed the refund claim for the service tax paid in excess. This fact was not in dispute. Therefore, as per the provisions of section 11B of the Central Excise Act, 1944 they were entitled for the interest from three months after the date of filing of the refund claim till the receipt of the refund. The appellant relied upon the decision of the Hon’ble Supreme Court in the case of Ranbaxy Pharmaceuticals (supra). Para 15 of the said decision reads as under:
“15. In view of the above analysis, our answer to the question formulated in para (1) supara was that the liability of the revenue to pay interest under section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under section 11B(1) of the act and not on the expiry of the said period from the date on which order of refund was made.”
However, we find that the appellants were issued deficiency memo since they have not filed the refund claim after removing the deficiency in all respects and they have filed refund claim after removing the deficiency in all respects only on 26-3-2009. This fact was also not in dispute. Therefore, the interest on the refund will commence three months after the date of removal of deficiency in the claim i.e. from 26-3-2009 till the date of receipt of the refund.  
  
Decision:- The appeal was allowed.
 
Comment:- the analogy of the present case was that it was well settled that the assessee was entitled to recieveinterest under section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under section 11B(1) of the act and not on the expiry of the said period from the date on which order of refund was made.”  It was worth noting that in case the assessee had been issued a deficiency memo, the relevant date for grant of interest shall be 3 months after the date of removal of deficiency in the claim.
 
Prepared by:- Monika Tak

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