HCL Technologies Ltd. Vs Commissioner of Central Excise (CESTAT Allahabad)
Conclusion: Interest for period after 3 months refund of 19 crores of cenvat credit was allowable after expiry of three months from the date of filing the claim to the date of claim. In the present case refund claim was filed on 27.12.2012 the period of three months will be over on 26.03.2013. They would be entitled to the interest for the period beyond 26 March, 2013 to the date of payment i.e. 21.05.2013, which was about 55 days.
Held: In the present case assessee-company had filed a refund claim of Rs.19 Crores and refund of the same amount i.e. Rs.19 crores, had been allowed by the Assistant Commissioner, Customs, Noida. When the amount as claimed and the refund claim filed had been sanctioned in toto where could there be any further dispute arisen, for assessee to be aggrieved with. Rule-5, as amended in 2012, did not require the refund claim filed by assessee, to be examined determining admissibility of credit against which refund claim was filed. It only required examination of the refund claim vis-à-vis the whole credit availed during the quarter and the total turnover and the export turnover having on the basis of such examination even after allowing certain amounts inadmissible for refund Assistant Commissioner had in the present case concluded the entire amount of refund claim of Rs.19 Crores was admissible to assessee and had allowed the same. It could not be that the order did not decide the admissibility of credit which could have been questioned only by way of a show cause notice in terms of Section 14 as has been held by various decisions referred in submissions of the Counsel. However, in the present case even after considering that amounts to be ineligible for refund. Assistant Commissioner by applying the formula as prescribed by Rule 5 had concluded that admissible refund to assessee was same as the refund claimed by assessee and had allowed the refund of entire amount as claimed by assessee. As the amount of refund allowed was equal to the amount as claimed by assessee, the assessee could not have been aggrieved by the order of the Assistant Commissioner. In absence of any proceedings under Rule 14 of Cenvat Credit Rules, 2004 observations recorded by Assistant Commissioner were only in nature observation could not be taken as denial of the credit. Even Assistant Commissioner had nowhere said so she only find this amount to ineligible for refund, but even after holding them to be ineligible for refund has allowed the refund claim filed by the appellant in toto. Appellant filed an appeal before the Commissioner (Appeals) not against the order of the Assistant Commissioner but against these observations made in the discussions and findings of the order. Commissioner (Appeals) modified these findings without any change in order portion which in any case was in accordance with the claim made by assessee. Revenue has not filed any appeal either before Commissioner (Appeals) or before this Tribunal for seeking modification of the refund of Rs.19,00,00,000/- (rupees Nineteen Crores only) allowed by the Assistant Commissioner. Assessee had claimed interest as per Section 11BB. As per Section 11BB interest is to be paid after expiry of three months from the date of filing the claim to the date of claim. In the present case refund claim was filed on 27.12.2012 the period of three months will be over on 26.03.2013. They would be entitled to the interest for the period beyond 26 March, 2013 to the date of payment i.e. 21.05.2013, which was about 55 days. To that extent appeal was allowed in favour of assessee.
FULL TEXT OF THE CESTAT ALLAHABAD ORDER
This appeal is directed against Order-in-Appeal No. NOI/EXCUS/000/APPL/197/2013 dated 30/09/2013 passed by Commissioner (Appeals) Customs, Central Excise & Service Tax, Noida. By the impugned order Commissioner (Appeals) has held as follows:-
ORDER
(i) The credit of service tax in respect of Pest Control Service is allowed to the appellants subject to the verification of the relevant documents and observance of the procedure and terms and conditions as laid down under the law at the relevant time.
(ii) The appeal in respect of the rest of the claim is rejected on merits.”
2.1 Appellant have filed a refund claim of Rs.19,00,00,000/- on 27.12.2012 in terms of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.05/2006-CE(NT) dated 14.03.2006 for the period January, 2012 to March, 2012.
2.2 Taking note of the verification report dated 28.03.2013 submitted by the Superintendent Service Tax, Noida, a show cause notice dated 30.04.2013 was issued to the appellant, asking them to show cause as to why their refund claim to the extent of Rs.23,39,587/- may not be rejected for the reasons that certain credit which has been claimed as refund claim under Rule 5 was not admissible to them.
2.3 This show cause notice was adjudicated by the Assistant Commissioner Central Excise, Noida vide order dated 21.05.2013 by holding as follows:-
“ORDER
I, hereby, Sanction the refund claim of Rs.19,00,00,000/- (Rupees Nineteen Crore Only) to M/s HCL Technologies Ltd., A-10-11, Sector-3, Noida in terms of Circular No.120/01-ST dated 19.01.2010 as discussed above, under rule 5 of CENVAT Credit Rules, 2004 read with Notification No.05/2006-CE(NT) dated 14.03.2006 A cheque bearing No.494540 dated 21.05.2013 of Rs.19,00,00,000/- is enclosed.”
2.4 Aggrieved by the above order appellant filed appeal before the Commissioner (Appeals), which has been disposed of the appeal by the impugned order. Aggrieved appellants have filed this appeal.
3.1 We have heard Shri Atul Gupta learned Counsel appearing for the appellant and Shri Manish Raj learned Authorised Representative appearing for the revenue.
3.2 Arguing for the appellant learned Advocate submits that-
