2010 (12) TMI 162

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....ed under Central Excise. During the period 01.03.2001 to 15.03.2001, the appellant cleared the goods by paying duty at 60% advalorem instead of at 42% advalorem. Therefore, they had filed a refund claim of Rs.79,003/- being excess duty paid by them. This amount was reworked out on the basis of cum-duty price and an amount of Rs.57,750/- was sanctioned as refund by the Adjudicating Authority vide order dated 31.05.02. The Department filed an appeal against the refund order. The Commissioner (Appeals) vide Order-in-Appeal No.273/2003 dated 23.9.2003 dismissed the appeal filed by the department. The department filed further appeal against the Order-in-Appeal No.273/2008 before CESTAT. 2.1  The Honrable CESTAT vide Final Order No.9....

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...., as it was for the first time on 21.8.2008, the amount was sought to be considered as erroneous refund. She would submit that the decision of the coordinate bench of the Tribunal in the case of Orion Steel Corporation Vs. CCE, Vadodara - 2008 (231) ELT 332 (Tri.-Ahmd.) is directly on the point. She would refer to paragraph 7 in the said order. 4. The learned departmental representative on the other hand would submit that this bench in the case of Divis Laboratories Ltd. Vs. CC & CE (A-III), Hyderabad - 2009 (242) ELT 566 (Tri.-Bang.) had taken a view that the assessee is liable to pay interest under Section 11AB for the erroneous refund till the date of the amount paid back to the revenue. 5.  I have considered the sub....

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....section (2), or has paid the duty under sub-section (2B), of section 11A, shall, in addition to the duty, be liable to pay interest at such rate not below [ten per cent] and not exceeding thirty-six per cent, per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty. 5.6  A combined reading of Section 11A(2B) and Section 11AB(1) makes it abundantly clear that even when the assesse....