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Cus - s.129E - If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant: HCGST - Issues relating to huge economic offence of stealthily procuring raw materials, clandestine manufacturing and fraudulent supply of filter cigarettes - Petitioner should have availed alternate efficacious remedy: HCGST - Where an adverse decision is contemplated, it is mandatory for the authority concerned to afford opportunity of personal hearing even if not sought: HCUS-UK coalition airstrikes at Houthis in Red Sea portGST - Since there has been a delay of one year in taking up the appeal, appellate authority could have granted one more opportunity by issuing a fresh notice of hearing: HCPMK joins NDA; to share dais with PM at SalemGST - s.83 - Extension - Mere noting in the file of the officer concerned cannot constitute an order - It cannot be considered as a fresh order u/s 83(1): HCGST - Attachment of bank account - Provisions of s.83 are to be r/w s.122(1-A) - Maharashtra GST Authorities have the jurisdiction to resort to provisions of s.83 with respect to Petitioner located in Chennai: HCEinstein’s brain was stolen by Princeton Hospital pathologist & cut into 240 pieces to study tissues, reports National GeographicCBDT explains what is 'tax effect' for purpose of filing appeal in cases beyond monetary limitsUK begins hunt for sunken ship loaded with gold worth 4 bn poundsPrivacy at Stake: Evaluating Data Principal Rights in the DPDP Act 2023Delhi regains its title as world’s most polluted cityLitigation Management: CBDT revises instructions and monetary limits prescribed for filing appeal or SLP before courtsUnsettled borders and rise of China major challenges for defence forces, says Chief Anil ChauhanI-T- Rules of natural justice are contravened where notices of hearing are not sent to valid email addresses indicated by assessee & order passed in consequence thereto is invalidated : HCAmerican IRS Chief expects workforce to surpass one-lakh-mark in next 3 yrsI-T - Provisions of Section 148A clearly require that an assessee be granted opportunity of personal hearing & an order passed in non-compliance with this requirement stands vitiated: HCDeloitte LLP goes for restructuring to tamp down costsI-T - If no error is being found by AO qua acceptance and genuineness of transaction of assessee, then AO cannot initiate reopening, and if reopening is not permitted, then CIT cannot issue notice u/s 263: ITATNvidia unfolds powerful chip to retain edge in AI marketI-T - Additions framed u/s 68 were rightly quashed where the assessee has discharged onus of identity, creditworthiness and genuineness of transaction : ITATTrump’s lawyer says Trump has not means to raise bond in USD 464 mn fraud caseI-T- Addition cannot be framed on account of unexplained cash credit, where assessee has recorded the sales in its books and there is no adverse finding qua stock and purchases: ITATFood scarcity: Gaza heading for mass deathsCX - Tax demands merits being quashed where based on oral statements but without permitting Assessee to cross examine the deponents & where also based on circumstantial statements: CESTATBJP decides to go with Chirag Paswan; trashes his uncle Pashupati Paras in BiharST - Being appellant a registered service provider and filing their Service Tax returns, demand cannot be raised on the basis of Form-26AS obtained from Income Tax Department: CESTATDubai Financial Centre frames rules to regulate digital assetsCus - Clearance of domestic household goods without proper clearance, does not warrant disproportionate penalty of Rs 50000/-, as the same is not a case of regular import by an IEC holder: CESTATCBDT directs income tax field offices to remain open on March 29, 30 & 31stCX - In so far as security services for their factory and trading premises was concerned, said services was directly connected with their business and hence, appellant was entitled for credit of service tax paid: CESTAT
 
CX – No interest liability devolves on Central Govt for any delay in transferring amount to Consumer Welfare Fund - Appellant has no vicarious standing to act on behalf of Fund: CESTAT

By TIOL News Service

MUMBAI, FEB 24, 2017: IN the matter concerning valuation issue, the manufacturer filed two refund claims for the period from 1 st January 1978 to 31st October 1981 and for the period from 1 st November 1981 to 31st October 1984 for a total amount of Rs.1,25,34,988.97. The claim was rejected by the original authority and in writ petition before the High Court the order was set aside following which the amount was paid on 12th July 1990. On Revenue appeal, a Division Bench of the High Court, by its order of 3rd March 1993, found in favour of Revenue, in the light of amendment to section 11B of CEA, 1944, and directed the manufacturer to deposit the amount with the court and which, on 11th August 1993, was permitted to be withdrawn by department which, after disposal of writ petition filed by the appellant against such withdrawal, was effected on 13th October 1993. The special leave petition of the manufacturer against the rejection of refund claim by High Court was also dismissed by the Supreme Court on 30th January 1997.

Be that as it may, in the light of the judgment in Mafatlal Industries Ltd - 2002-TIOL-54-SC-CX and the revised section 11B of CEA, 1944, appellant filed a claim for refund on 11th February 1997 and which resulted in the original authority sanctioning the amount but transferring the same to the Consumer Welfare Fund; the claim of interest u/s 11BB of the CEA, 1944 made by the appellant purportedly for the period from the date of withdrawal of amount from High Court till the order of the original authority was also dismissed.

The Commissioner(A) held that the original authority had erred in transferring the amount to the Fund as the Supreme Court had ruled that there was no entitlement to sanction of refund itself and that the order of the original authority was void ab initio . Taking note that an appeal against a void order is not appropriate for claiming a right, the appeal was dismissed.

The appellant is now before the CESTAT.

The Bench, after considering the intricacies involved, inter alia observed thus –

++ Appellant could not have any grievance as their eligibility for refund had been decided against them by the Hon'ble Supreme Court. Had the impugned order set aside the order of the original authority on the ground that transfer to Fund was not proper the propriety of such setting aside could have been questioned. We observe that the first appellate authority has not done so but, while dismissing the appeal of M/s Allied Photographic Ltd, it was held that the order, being of itself flawed, cannot confer a right of interest on the applicant for refund. The reasoning adopted is certainly within the scope of decision on appeal . However, it does not suffer from any infirmity even though the decision may be challenged. Consequently, we do not concur with appellant that the impugned order deserves to be set aside for the alleged solecism.

In the matter of seeking interest u/s 11BB of the CEA, 1944, the Bench had the following to say –

++ The original authority, for reasons best known to him, has found it necessary to pass an order in a show cause notice which already stood decided. Whether the notice, limited to the issue of unjust enrichment, could settle the issue of limitation is not relevant; the highest court in the land has held the claim to be ineligible and that ineligibility cannot be transformed into eligibility by the Assistant Commissioner. The conclusion is that such an order does not reinstate the claims of the appellant to be an eligible claim for refund. That has been extinguished by the Hon'ble Supreme Court and, short of divinity,there is no executive power that can administer the 'kiss of life.' Without such reinstatement, the appellant ceases to be the 'applicant' that it claims to be in the grounds of appeal. It is only an applicant that is endowed with the right to claim interest.

The CESTAT, thereafter, extracted the provisions of section 11BB of CEA, 1944 and noted –

+ (section11BB) is unambiguously clear in that it is liable to be invoked only when three months have passed since it has been applied for. However, it is further contingent upon sanction of refund. Hence, …conditions are to be fulfilled for section 11BB to come into effect; sanction of refund to applicant and refund order not having been passed for three months since its application. While the last condition may be said to exist, it must also be made clear that such a state cannot be said to be in existence except where the refund is sanctioned to applicant. By no stretch can the appellant claim that the amount has been ordered to be refunded to it. The entitlement to interest, therefore, does not devolve on the appellant.

+ Even if it assumed that the transfer to the Fund was correct, it is moot whether any interest liability will devolve on the Central Government for any delay in doing so. That it took more than eight years for an order of transfer to Fund should not concern the appellant. A tax collected without authority of law retains its sanctity until illegality of collection is decided upon by lawfully constituted authority and brought to fruition by sanction of the amount. Without an order of sanction and disposition, thereof, to the Fund, the amount remains in the Consolidated Fund of India and the only consequence of sanction is its shift to the Fund which is also under the control of the Central Government. Appellant has no vicarious standing to act on behalf of the Fund and for claiming that, as the Fund is not entitled to interest, the Central Government has to be deprived of such amount . The appellant is not entitled to refund and, with that, its claim on time value of that money does not exist .

The appeal was held to be without merits and, therefore, dismissed.

(See 2017-TIOL-588-CESTAT-MUM)


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