Custom, Excise & Service Tax TribunalHitesh Industries vs Commissioner Of Cgst ... on 7 December, 20201\n\nCUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL\n                   NEW DELHI.\n\n                  PRINCIPAL BENCH - COURT NO. II\n\n                 Excise Appeal No. 50171 of 2019-SM\n(Arising out of order-in-appeal No. 270/Central Tax/Appl-II/Delhi/2018 dated\n28.11.2018 passed by the Commissioner of Central Tax (Appeals-II), Delhi.)\n\nM/s Hitesh Industries                              Appellant\nA-99/2A, Wazirpur Industrial Area\nNew Delhi-110052.\n                                    VERSUS\n\nCommissioner, Central Goods and                    RespondentService Tax, UG Floor\nEIL Annexe Building\nBhikaji Cama Place\nNew Delhi-110066.WITH\n                Excise Appeal No. 50172        of 2019-SM(Arising out of order-in-appeal No. 270/Central Tax/Appl-II/Delhi/2018 dated\n26.11.2018 passed by the Commissioner of Central Tax (Appeals-II), Delhi.)\n\nM/s Vikas Cable Company                            Appellant\n13, Haiderpur\nNew Delhi-110088.VERSUS\n\nCommissioner, Central Goods and                    Respondent\nService Tax, UG Floor\nEIL Annexe Building\nBhikaji Cama Place\nNew Delhi-110066.AND\n                Excise Appeal No. 50173        of 2019-SM(Arising out of order-in-appeal No. 270/Central Tax/Appl-II/Delhi/2018 dated\n26.11.2018 passed by the Commissioner of Central Tax (Appeals-II), Delhi.)\n\nM/s Deco Industries India                          Appellant\nA-99/5, Wazirpur Industrial Area\nNew Delhi-110052.VERSUS\n\nCommissioner, Central Goods and                    Respondent\nService Tax, UG Floor\nEIL Annexe Building\nBhikaji Cama Place\nNew Delhi-110066.APPEARANCE:Shri Bipin Garg, Advocate for the appellant\nMs. Tamanna Alam, Authorised Representative for the respondent2CORAM:HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)\n\n               FINAL ORDER NOs. 51631 - 51633/2020\n\n                                                  DATE OF HEARING: 18.11.2020\n                                                 DATE OF DECISION: 07.12.2020\n\nANIL CHOUDHARY:The appellants are in appeal against the impugned order\n\nin appeal denying interest on delayed refund i.e. from the date of\n\ndeposit till the refund of the pre-deposit of principal amount.                        The\n\ndetails are as follows:-Appeal No.    Amount           Show       O.I.O. dated    CESTAT     Refund       O.I.A.\n& Name of     deposited        cause                      F.O.       given vide   (denying\nthe party     (Rs.)            notice                     date on    O.I.O        interest)\n                               dated                      merits     dated\nE/50171/19    7,00,000         12.02.07   02.12.10        02.02.18   26.06.18     28.11.18\nHitesh        (during inv.)               14,87,904/-\nIndustries\nE/50173/19    35,00,000        12.02.07   02.12.10        02.02.18   26.06.18     28.11.18\nDeco          (during inv.)               1,96,40,040/-\nIndustries\nE/50172/19    10,00,000        12.02.07   02.12.10        02.02.18   26.06.18     28.11.18\nVikas Cable   June, 2006                  35,97,232/-\nCompany2.             From the facts which are similar in all these appeals, the\n\nappellants during the course of investigation had made deposit\n\ntowards the expected demand prior to issue of show cause notice.Thereafter, separate show cause notices were issued all dated\n\n12.02.2007 proposing to disallow the cenvat credit on the input(s)\n\nreceived.     The show cause notices were adjudicated and confirmed\n\nvide separate orders-in-original dated 02.12.2010 confirming the\n\nproposed demands alongwith penalty.                       The matters were finally\n\nsettled   vide     Final      Order   No.    A/50465-81/2018-EX            (DB)      dated\n\n02.02.2018 of this Tribunal in favour of the appellants -assessee3setting aside the orders confirming demand and penalty.      On being\n\nsuccessful, the appellant-assessees applied for refund alongwith\n\ninterest. The adjudicating authority allowed the refund vide separate\n\norders-in-original dated 26.06.2018 but was pleased to reject the\n\nclaim of interest on refund by making a self contradictory observation\n\nthat the appellant had not made the payment themselves towards\n\npre-deposit, therefore, this amount cannot be considered to be\n\ndeposit made under Section 35F of the Act. Therefore, no interest is\n\nallowable under Section 35FF of the Act. It was also observed that no\n\ninterest arises under Section 11BB of the Act as the refund is being\n\ngranted within three months from the date of receipt of refund\n\napplication.3.             Being aggrieved, the appellants preferred appeal before\n\nthe Commissioner (Appeals). The appeals were rejected by common\n\norder-in-appeal dated 28.11.2018, observing that there is nothing on\n\nrecord to show that the amount paid by the appellants during\n\ninvestigation was forcefully collected from them. Further, observing\n\nthat no claim of refund was made before passing of final order by the\n\nTribunal in favour of the appellant. As regards grant of interest under\n\nSection 35FF of the Act, it was observed that the appellant have not\n\nclaimed that the amount paid by them, be treated as pre-deposit\n\nunder Section 35F of the Act.4.             Being aggrieved, the appellants have preferred appeal\n\nbefore this Tribunal.45.          Learned Counsel Shri Bipin Garg for the appellants urges\n\nthat the observation of the Court below are erroneous and self\n\ncontradictory.   Admittedly, the amount was deposited during the\n\ncourse of investigation in the year 2006 prior to issue of show cause\n\nnotice on 12.02.2007. Further, this fact is also ipso facto proved by\n\ngrant of refund of principal amount deposited, vide refund order(s)\n\ndated 26.06.2018. It is further urged that in view of the provisions of\n\nSection 11B read with Section 11BB, read with Section 35F and 35FF,\n\nthe appellants are entitled to get interest from the date on which the\n\namount was deposited till the date of grant of refund. The amount of\n\npre-deposit was made admittedly, on the dispute raised by the\n\nDepartment as regards availing of cenvat credit with respect to input/\n\nraw material received for production, by the appellants.        As the\n\nappellants have been successful vide final order of this Tribunal dated\n\n02.02.2018, the said amounts were never payable. The fact that the\n\namounts were paid under protest is ipso facto established as the\n\nappellants have contested the show cause notice and have been in\n\nappeal.   Further, the amounts deposited during investigation or\n\npursuant to passing of the adjudication order, both form part of pre-\n\ndeposit under Section 35F. Further, under the amended Section 35FF\n\n(w.e.f. 06.08.2014) the assessee is entitled to interest on such\n\namount at the rate notified from the date of payment of amount till\n\nthe date of refund of such amount.6.          Learned Counsel for the appellant submits that the\n\nscheme ofCentral Excise Actand its Rules has always been that\n\nwherever any demand of duty has not been paid by any assessee at5the appropriate rate and date, the same attracts charging of interest\n\non such amount from such date. Such principle needs to be followed\n\neven in such cases where any amount has been retained and utilised\n\nby the Revenue till the date of reimbursement of such amount to the\n\nassessee. In such cases, the assessee needs to be compensated by\n\nway of interest, towards the financial loss suffered by the assessee,\n\ndue to action of the Revenue. To support his contention, he relied on\n\nthe decision of the Hon'ble Apex Court in the case of Sandvik Asia\n\nLimited -2006 (196) ELT 257 (SC).7.           He further submits that although the decision of the\n\nHon'ble Apex Court is in the context ofIncome Tax Act, but the\n\nprovisions for entertaining the interest are identical to the provisions\n\nof Central Excise, and in terms ofArticle 141of the Constitution of\n\nIndia, the judgement given by the Hon'ble Supreme Court is the law\n\nof land and is binding on all lower Courts or Authorities. Therefore, in\n\nthe light of the decision of the Hon'ble Supreme Court in the case of\n\nSandvik Asia Limited (supra), the appellant is entitled to claim\n\ncompensation by way of interest from the date of deposit of the\n\namount, till its realisation.8.           He also relied on the decision of Hon'ble Allahabad High\n\nCourt in the case ofHello Mineral Water (P) Limited vs. Union of\n\nIndia- 2004 (174) ELT 422 (All.)andHindustan Coca-Cola\n\nBeverages Pvt. Ltd. vs. Union of India-2015 (324) ELT 299\n\n(Guj.).He also relied on the decision of Hon'ble Madras High Court\n\nin the case of M/sAreva T&D India Limited vs. CC, Chennai-62013 (290) ELT 496 (Mad.). Therefore, he prayed that the interest\n\nfor the intervening period be granted to the appellant.9.          Learned Authorised Representative Ms. Tamanna Alam for\n\nthe Revenue opposes the prayer for grant of interest and submits that\n\nreliance placed on the ruling of Apex Court in the case ofSandvik\n\nAsia Limited(supra) is misplaced asin that casethere was delay for\n\na period ranging from twelve to seventeen years, whereas in the\n\npresent cases, the refund have been granted within a period of three\n\nmonths from the date of application pursuant      to Final order of the\n\nTribunal.   Hence, no interest is payable.Further, in the case ofSandvik Asia Limited(supra) relates to refund of advance tax paid\n\nby the assessee, and refund arose pursuant to passing of the\n\nassessment order.     In the facts of these cases, the refund arisen\n\npursuant to passing of the final order of this Tribunal.   It is further\n\nurged that in view of the specific provision, grant of interest underSection 35FFof the Act is applicable, as it existed prior to 06.08.2014\n\nunder which refund on pre-deposit is allowable on delay in granting\n\nrefund beyond three months from the date of communication of the\n\norder, and thus no refund is allowable in the facts and circumstances\n\nof this case.Reliance is placed by the learned AR on ruling of the\n\nApex Court in the case ofCCE, Hyderabad vs. ITC Ltd., -2005\n\n(179) ELT 15 (SC).10.         Having considered the rival contentions, I find that similar\n\nissue arose before this Tribunal in the case ofFujikawa Power &\n\nAnr. vs. CCE &ST, Chandigarh-I, vide final order No. 61041-761042/2019 dated 26.11.2019, whereby a coordinate Bench of this\n\nTribunal have held as follows:-"11. The contention of the Ld.AR is that in terms ofSection 35FFof\n     the Central Excise Act, 1944, the interest on delayed refund is to be\n     paid after 3 months from the date of communication of the order.\n     When specific statute has been made, therefore, the decision in the\n     case ofSandvik Asia Limited(supra) is not applicable to the facts of\n     this case on the ground thatthe said decisionhas been delivered by\n     the Hon'ble Apex Court in the context ofIncome Tax Actwhereas we\n     are dealing withCentral Excise Actprovisions. I find that whether the\n     provisions ofIncome Tax Actand the provisions ofCentral Excise Actare pari materia or not. The same has been examined by this Tribunal\n     in the case of Donar Foods reported in 2017 (346) ELT 612(Tri.-\n     Chan.) wherein this Tribunal observed as under:-"27. We have seen both decisions referred before us. The\n           decision in the case of M/s. Cynamid India Ltd. (SC) is with\n           regard to theIncome Tax Actand as perSection 2(29BA)of\n           the Income-tax Act, 1961 the term "manufacture" with its\n           grammatical variation means a change in non-living physical\n           object or article -(a)   resulting in transformation of object or article or things\n           into a new and distinct object or article or having a distinct\n           name, character and use; or(b)    bringing into existence of a new distinct object or article\n           or thing with different chemical composition or integral\n           structure.28.     On going through the above definition of the\n           manufacture, the testlaid down bythe Apex Court in the case\n           ofDelhi Cloth and General Mills Co. Ltd.(supra) support the\n           definition that a new and different article must emerge having\n           a distinct name, character and use. Therefore, the definition of\n           manufacture asSection 2(f)of the Central Excise Act, 1944 is\n           pari materia to definition of manufacture inIncome-tax Actas\n           perSection 2(29BA)of the Income-tax Act, 1961.29.    Therefore, the decision in the case of M/s. Cynamid\n           India Ltd. is applicable to the facts of this case wherein the\n           Apex Court has observed as under :5.      The High Court has answered the question in favour of\n           the assessee and against the Revenue. Having referred to the\n           definition of "agricultural product‟ in Black's Law Dictionary,\n           the High Court has held that the operation of de-husking paddy\n           is not an industrial or manufacturing operation as commonly\n           understood; it is essentially an agricultural operation and such8changes as are brought about in the product are an outcome of\n      agricultural operation. Both rice and husk remain in their\n      natural form as a result of dehusking and are covered by the\n      term „agricultural product‟.6.     The High Court has also formed an opinion thatSection\n      35Cof the Income-tax Act, 1961, was designed to encourage\n      development of agriculture and, therefore, gave a weighted\n      deduction in respect of expenditure incurred in providing to the\n      agriculturists services and facilities specified therein. The term\n      „agricultural product‟ or "product of agriculture‟ is required to\n      be construed liberally so as to include not merely the primary\n      product as it actually grows, but also a product which\n      undergoes a simple operation so as to make it more saleable or\n      more usable. The rice and the husk though separated remain\n      as they were produced and hence continued to be "agricultural\n      product‟ or "product of agriculture‟.30.   As the Hon'ble Apex Court has held that conversion of\n      paddy into rice is not a distinct operation and the rice and husk\n      remain in their natural form as a result of dehusking and are\n      covered by the term "agricultural product‟.31.   Therefore, we hold that the test of manufacture has\n      been failed as the goods are not manufactured goods as perSection 2(f)of Central Excise Act, accordingly, the question of\n      excisability does not arise. Therefore, the Issue No. 1 is\n      answered in favour of the appellants."The said decision of this Tribunal has been affirmed by the Hon'ble\nApex Court reported 2017 (354) ELT A-57(SC) wherein "It was also\nheld that the definition of "manufacture‟ underSection 2(f)of the\nCentral Excise Act, 1944 is pari materia to the definition provided\nunderSection 2(29BA)of the Income-tax Act, 1961."\n\nTherefore, I find no force in the arguments advanced by the Ld.AR\nthat the decision ofIncome Tax Actis not applicable to theCentral\nExcise Actwhereas the provisions of both Acts are pari materia.\nTherefore, the argument advanced by the Ld.AR is turned down and\nnot acceptable.12.    He further made reliance on the decision of Hon'ble Apex Court\nin the case ofITC Ltd.(supra).13.     I have gone through the case laws relied upon by the Ld.AR. In\nthe case ofITC Ltd.(supra), the decision of Hon'ble Apex Court has\nbeen delivered on 02.12.2004 whereas the decision in the case ofSandvik Asia Limited(supra) delivered on 27.1.2006. Therefore, the\nlatest decision of the Hon'ble Apex Court is having persuasive value.In all the other cases, (referred to by Ld. AR) have not considered the\ndecision in the case ofSandvik Asia Limited(supra).914.    I have gone through the decision in the case ofSandvik Asia\nLimited(supra), wherein thesection 243dealt with situation of\ninterest on delayed refund.15.   For better appreciation,section 243of the Income Tax Act,\n1961 reproduced as under:-"243. Interest on delayed refunds- (1) if the Income tax officer does\nnot grant refund-(a)   In any case where the total income of the assessee does\n      not consist solely of income from interest on securities or\n      dividend, within three months from the end of the month in\n      which the total income is determined under this Act, and(b)   In any other case, within three months from the end of\n      the month in which the claim for refund is made under this\n      Chapter,\n\n      the Central Government shall pay the assessee simple interest\n      at (twelve) per cent per annum on the amount directed to be\n      refunded from the date immediately following the expiry of the\n      period of three months aforesaid to the date of the order\n      granting the refund.Explanation: If the delay in granting the refund within the\n      period of three months aforesaid is attributable to the\n      assessee, whether wholly or in part, the period of the delay\n      attributable to him shall be excluded from the period for which\n      interest is payable."16.Section 35FFof the Central Excise Act, 1944 deals with the\n      situation in hand, the same is extracted below:-"Section 35FF. Interest on delayed refund of amount\n            deposited under the proviso to Section 35F- Where an\n            amount deposited by the appellant in pursuance of an\n            order passed by the Commissioner (Appeals) or the\n            Appellate Tribunal (hereinafter referred to as the\n            appellate authority) under the first proviso to section\n            35F, is required to be refunded consequent upon the\n            order of the appellate authority and such amount is not\n            refunded within three months from the date of\n            communication of such order to the adjudicating\n            authority, unless the operation of the order of the\n            appellate authority is stayed by a superior court or\n            tribunal, there shall be paid to the appellant interest at\n            the rate specified in section 11BB after the expiry of\n            three months from the date of communication of the\n            order of the appellate authority, till the date of refund of\n            such amount."1017.    On-going through the provisions of bothIncome\nTax Act, 1961andCentral Excise Act, 1944, the interest\non delayed refund is payable after expiry of 3 months\nfrom the date of granting refund or from the date of\ncommunication of order of the appellate authority, which\nare pari-materia. Therefore, the decision of Hon'ble Apex\nCourt in the case ofSandvik Asia Ltd.(supra) is law of\nland, in terms ofArticle 141of the Constitution of India\nwhich is to be followed by me, wherein the Hon'ble Apex\nhas observed as under:-"45. The facts and the law referred to in\n      paragraph (supra) would clearly go to show that\n      the appellant was undisputably entitled to interest\n      underSections 214and244of the Act as held by\n      the various High Courts and also of this Court. In\n      the instant case, the appellant's money had been\n      unjustifiably withheld by the Department for 17\n      years without any rhyme or reason. The interest\n      was paid only at the instance and the intervention\n      of this Court in Civil Appeal No. 1887 of 1992\n      dated 30.04.1997. Interest on delayed payment of\n      refund was not paid to the appellant on\n      27.03.1981 and 30.04.1986 due to the erroneous\n      view that had been taken by the officials of the\n      respondents. Interest on refund was granted to\n      the appellant after a substantial lapse of time and\n      hence it should be entitled to compensation for\n      this period of delay. The High Court has failed to\n      appreciate that while charging interest from the\n      assesses, the Department first adjusts the amount\n      paid towards interest so that the principle amount\n      of tax payable remain outstanding and they are\n      entitled to charge interest till the entire\n      outstanding is paid. But when it comes to granting\n      of interest on refund of taxes, the refunds are first\n      adjusted towards the taxes and then the balance\n      towards interest. Hence as per the stand that the\n      Department takes they are liable to pay interest\n      only upto the date of refund of tax while they take\n      the benefit of assesses funds by delaying the\n      payment of interest on refunds without incurring\n      any further liability to pay interest. This stand\n      taken by the respondents is discriminatory in\n      nature and thereby causing great prejudice to the\n      lakhs and lakhs of assesses. Very large number of\n      assesses are adversely affected inasmuch as the\n      Income Tax Department can now simply refuse to\n      pay to the assesses amounts of interest lawfully\n      and admittedly due to them as has happened in11the instant case. It is a case of the appellant as\nset out above in the instant case for the\nassessment year 1978-79, it has been deprived of\nan amount of Rs.40 lakhs for no fault of its own\nand exclusively because of the admittedly unlawful\nactions of the Income Tax Department for periods\nranging up to 17 years without any compensation\nwhatsoever from the Department. Such actions\nand consequences, in our opinion, seriously\naffected the administration of justice and the rule\nof law.COMPENSATION:46. The word 'Compensation' has been defined in\nP. Ramanatha Aiyar's Advanced Law Lexicon 3rd\nEdition 2005 page 918 as follows:"An act which a Court orders to be done, or\nmoney which a Court orders to be paid, by a\nperson whose acts or omissions have caused loss\nor injury to another in order that thereby the\nperson damnified may receive equal value for his\nloss, or be made whole in respect of his injury;\nthe consideration or price of a privilege\npurchased; something given or obtained as an\nequivalent; the rendering of an equivalent in value\nor amount; an equivalent given for property taken\nor for an injury done to another; the giving back\nan equivalent in either money which is but the\nmeasure of value, or in actual value otherwise\nconferred; a recompense in value; a recompense\ngiven for a thing received recompense for the\nwhole injury suffered; remuneration or satisfaction\nfor injury or damage of every description;\nremuneration for loss of time, necessary\nexpenditures, and for permanent disability if such\nbe the result; remuneration for the injury directly\nand proximately caused by a breach of contract or\nduty; remuneration or wages given to an\nemployee or officer."47. There cannot be any doubt that the award of\ninterest on the refunded amount is as per the\nstatute provisions of law as it then stood and on\nthe peculiar facts and circumstances of each case.\nWhen a specific provision has been made under\nthe statute, such provision has to govern the field.\nTherefore, the Court has to take all relevant\nfactors into consideration while awarding the rate\nof interest on the compensation.1248.    This is the fit and proper case in which\n                   action should be initiated against all the officers\n                   concerned who were all in charge of this case at\n                   the appropriate and relevant point of time and\n                   because of whose inaction the appellant was made\n                   to suffer both financially and mentally, even\n                   though the amount was liable to be refunded in\n                   the year 1986 and even prior to. A copy of this\n                   judgment will be forwarded to the Hon'ble Minister\n                   for Finance for his perusal and further appropriate\n                   action against the erring officials on whose\n                   lethargic and adamant attitude the Department\n                   has to suffer financially.49.    By allowing this appeal, the Income-tax\n                   Department would have to pay a huge sum of\n                   money by way of compensation at the rate\n                   specified in the Act, varying from 12% to 15%\n                   which would be on the high side. Though, we hold\n                   that the Department is solely responsible for the\n                   delayed payment, we feel that the interest of\n                   justice would be amply met if we order payment\n                   of simple interest @ 9% p.a. from the date it\n                   became payable till the date it is actually paid.\n                   Even though the appellant is entitled to interest\n                   prior to 31.03.1986, learned counsel for the\n                   appellant fairly restricted his claim towards\n                   interest from 31.03.1986 to 27.03.1998 on which\n                   date a sum of Rs.40,84,906/- was refunded.50.   The assessment years in question in the\n                   four appeals are the assessment years 1977-78,\n                   1978-79, 1981-82 and 1982-83. Already the\n                   matter was pending for more than two decades.\n                   We, therefore, direct the respondents herein to\n                   pay the interest on Rs.40,84,906 (rounded to\n                   Rs.40,84,900) simple interest @ 9% p.a. from\n                   31.03.1986 to 27.03.1998 within one month from\n                   today failing which the Department shall pay the\n                   penal interest @ 15% p.a. for the above said\n                   period."18.      As the Hon'ble Apex Court has answered the issue holding that\nthe assessee is entitled to claim interest from the date of payment of\ninitial amount till the date of its refund. Therefore, I hold that the\nappellants are entitled to claim the interest on delayed refund from\nthe date of deposit till its realization.19.   Further, the interest on the refund shall be payable @ 12%\nper annum as held by Hon'ble Kerala High Court in the case of Sony13Pictures Networks India Pvt.Ltd.-2017 (353) ELT 179 (Ker.) wherein it\nhas held as under:-"14. Now, the sole question remains to be considered is what\n      is the nature of interest that the petitioner is entitled to get. As\n      discussed above in the judgmentCommissioner of Central\n      Excise v. ITC(supra), the Apex Court confined the interest to\n      12% and further held that any judgment/decision of any High\n      Court taking contrary view, will be no longer good law. The said\n      judgment is rendered, in my considered opinion under similar\n      circumstances.So also inKuil Fire Works Industries v. Collector\n      of Central of Excise[1997 (95) E.L.T. 3 (S.C.), the pre-deposit\n      made by the assessee was directed to be returned to him with\n      12% interest.I have also come across the judgment of the\n      Calcutta High Court inMadura Coats Pvt. Ltd. v. Commissioner\n      of C. Ex., Kolkata-IV[2012 (285) E.L.T. 188 (Cal.), wherein the\n      peremptory directions of the Apex Court in the judgment ofITC\n      Ltd.(supra) was considered and ordered 12% interest, and\n      further held that when the High Court directed the respondents\n      to pay interest to the appellant in terms of the circular dated 8-\n      12-2004 on the pre-deposit of the delayed refund within two\n      months, it has to be construed that, the Court meant the rate\n      of interest which was awarded by the Supreme Court in the\n      case ofCommissioner of Central Excise v. ITC Ltd., which was\n      the rate quantified by the Supreme Court in the absence of any\n      statutory provisions in the Act in question.Even though various\n      other judgments of various High Courts and the various\n      Tribunals was brought to my notice awarding 15% interest, in\n      view of the directions contained in the judgment of the Apex\n      Court inCommissioner of Central Excise v. ITC Ltd.(supra)\n      rate of interest is to be confined to 12%. I am also bound to\n      follow the same. Therefore the interest that is liable to be paid\n      by the respondents as per the directions of this Court in Ext.\n      P12 judgment is fixed at 12% per annum.15.   Taking note of the compendious circumstances and\n      reckoning the law, there will be a direction to the respondents\n      to pay interest to the petitioner at 12% from the date of expiry\n      of three months from 18-11-2002, to the amount of refund\n      already made, within a month from the date of receipt of a\n      copy of this judgment, after adjusting any interest paid."20.   Further, the same view was taken in the case Ghaziabad Ship\nBreakers Pvt.Ltd.-2010 (260) ELT 274 (Tri. Ahmd.), wherein this\nTribunal observed as under:-"5.    I have considered the submissions made by both the\n      sides. I notice that appellants deposited amount in September,\n      October and in November 2004, as per the directions of the\n      department. In September 2004, the Hon'ble Gujarat High\n      Court had dismissed the SCA filed by the appellants against the14order of the Tribunal rejecting the appeal for failure to make\n              the pre-deposit. This SCA was dismissed in September 2004\n              and SLP was filed in the Hon'ble Supreme Court in October\n              2004. In July 2005, the Hon'ble Supreme Court ordered that if\n              the amount directed to be deposited by the Tribunal is\n              deposited, the appeals before the Tribunal has to be restored\n              and decided on merits. In these circumstances, the amount\n              deposited by the appellant is to be treated as pre-deposit since\n              the matter had not attained finality during the relevant period.\n              Therefore, refund is to be treated as refund of pre-deposit\n              made when the appeal was pending. There is no dispute that\n              the amounts deposited is duty but this is not the issue which\n              has been taken into account while precedent decisions have\n              allowed the interest at 12% on the refunds claimed in respect\n              of pre deposit. I find that in the decisions cited by the learned\n              advocate, interest at 12% has been allowed. Therefore,\n              following the judicial discipline, I consider it appropriate that\n              interest in this case also is to be allowed @ 12%. Accordingly,\n              original adjudicating authority is directed to workout the\n              differential interest amount and make the payment to the\n              appellants."21.     As the provisions ofsection 243Income Tax Act, 1961 andsection 35FFof Central Excise Act, 1944, are pari-materia. Therefore,\n       following the decision of Hon'ble Apex Court in the case ofSandvik\n       Asia Ltd.(supra) andSony Pictures Networks India Pvt. Ltd.(supra) I\n       hold that the appellants are entitled to claim interest from the date of\n       payment of initial amount till the date its refund @ 12% per annum.11.           Agreeing with the findings of the Coordinate Bench in the\n\ncase ofFujikawa Power & Anr.(supra), I allow the appeals and set\n\naside the impugned order so far interest have been disallowed. The\n\nadjudicating authority is directed to grant interest from the date of\n\ndeposit till the date of grant of refund @12% per annum.                 Such\n\ninterest on refund should be granted within a period of sixty (60)\n\ndays from the date of receipt of service or a copy of this order.(Pronounced on   07.12.2020).(Anil Choudhary)\n                                                           Member (Judicial)\n\nPant