TaxTMI 
TaxTMI 
2013 (7) TMI 837
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....- as a result of its appeal being allowed by the Collector(Appeals) CEC, Ghaziabad by the order dated 3.5.1991, setting aside the adjudication order whereunder the amount in question was realised by making deductions from production incentive and MEG set off due to the petitioner. Application for refund was filed on 5.8.1991. It remained pending because of lackadaisical attitude of the authorities in spite of repeated reminders. It appears that the petitioner approached this Court by way of WP Tax No. 522 of 2009 raising grievance that its application for refund is not being decided and the writ petition was disposed of by order dated 25.2.2009 directing the Revenue to decide the claim of the petitioner for refund within three months from the date of production of a certified copy of the order. Consequent to the said direction, the Dy. Commissioner,CE, Div.,Gzd. passed an order dated 20.8.2009 rejecting the application for refund dated 5.8.1991. The aforesaid order was subjected to challenge in appeal by the petitioner. The Commissioner (Appeals), CCE,Ghaziabad allowed the appeal, by order dt.14.12.2009, with the following observation: "Thus, the adjudicating authority while decid....
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....nctioning the refund considered the date of order passed by the Commissioner (Appeals), Ghaziabad to be relevant date for the sanction of refund. Perhaps, in view of provisions of Explanation to Section 11BB of the Central Excise Act, 1944, the interest was not granted." Thirdly, it has been further contented that in any view of the matter, petitioner is not entitled to interest prior to 26.8.1995 in view of the proviso to section 11BB of the Act. 4. In rebuttal, it has been submitted that the orders dated 7.6.2010 and 5.8.2010 are only administrative orders sanctioning the refund pursuant to the order dated 14.12.2009 passed by the Commissioner (Appeals) under section 11B (2) of the Act, and without any fetter for payment of interest and and therefore it is not possible for the petitioner to file an appeal against a non-existent order. It has been further stated in the rejoinder affidavit that in any case, since there is already an order for refund under section 11B(2) of the Act and which has attained finality and consequently there can be no justification on part of the authorities in declining to grant interest to the petitioner in spite of it being a statutory liability sinc....
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.... dated 5.8.2010 cannot be treated to be an order of adjudication nor can the same go beyond the main order. 8. We have given anxious consideration to the submissions made by the counsel for the parties in this regard. Admittedly, the demand of excise duty and on the basis of which, the respondents have succeeded in adjusting Rs. 10,69,322.95/- from the production incentive and MEG set off due to the petitioner was set aside by the Collector (Appeals) by his order dated 3.5.991. As a result of the said order, the petitioner become entitled for refund of the excise duty. It accordingly filed an application on 5.8.1991 for refund of the said amount. The application was wrongly not processed by the authorities till directions were issued in WP No. 522 of 2009 to decide the same within three months. However, the said application was rejected by order dated 20.8.2009 and aggrieved by which the petitioner filed an appeal, which was allowed by the Commissioner (Appeals) on 14.12.09. The said order is referable to an order under section 11B(2) in view of Explanation to Sec.11BB. While passing specific order for refund under section 11B(2), the authority has to see only 2 things; first, tha....
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....ble to order passed under section 11B(2) of the Act. In the backdrop of the aforesaid factual position, the relevant provisions of law may be taken notice of. These are: "Section 11B: Claim for refund of duty.-(1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be dee....
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....rder or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) ................................................................. (5) ................................................................" Section 11BB:"Interest on delayed refunds.- If any duty ordered to be refunded under subsection (2) of section 11B to any applicant is 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 applicant interest at such rate, not below five per cent and not exceeding thirty per cent per annum as is 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 Fina....
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....ears to be attractive, but on close scrutiny of provisions of the Act, it has no legs to stand. Liability to pay interest comes into existence after expiry of 3 months from the date of receipt of application under sub clause (1) of Section 11B of the Act. In ordinary state of affairs, what the legislature comprehended while enacting section 11BB was that upon a person becoming entitled for refund and on his filing an application in this regard, it will be processed forthwith and necessary orders will be passed under section 11B (2) of the Act without any delay. Soon thereafter, the refund will be made and in case where there is laxity on part of the authorities and refund is not made within three months from the date of application, the assessee will be entitled to interest. The legislature never had in its mind that the application for refund will not be processed for years together. It is for the said reason, that the legislature while framing section 11BB has used the language referable to the chronological order in which the things were required to take place i.e. soon after filing of application, order for refund will be passed, followed by actual refund of amount to the asses....
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....erest on belated payment of interest, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under sub-section (2) of Section 11B to refund the amount to the aplicant and not to be transferred to the Consumer Welfare Fund but the relevant date is to be determined with reference to the date of application laying claim to refund. The non-payment of refund to the applicant claimant within three months from the date of such application or in the case governed by proviso to Section 11BB, non-payment within three months from the date of the commencement of Section 1BB brings in the starting point of liability to pay interest, notwithstanding the date on which decision has been rendered by the competent authority as to whether the amount is to transferred to Welfare Fund or to be paid to the applicant needs no interference". The special leave petition is dismissed. No costs.". 17. Similar view has been taken by the Apex Court in Ranbaxy Laboratories Ltd. Vs. Union of India reported in 2011(273) ELT 3(SC). The Apex Court held as follows: "It is manifest from the afore-extracted provisions that Section 11BB of the Act comes....
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....ued a circular dated 1.10.2002 (Annexure-12) wherein it clarified that interest on delayed refunds is payable in case refund/rebate claim is sanctioned beyond prescribed period of three months of the filing of the claim. It also referred to its earlier circular wherein direction was issued to identify officers who are responsible for not disposing of refund claims within three months from the date of the receipt of the application as it was unnecessarily burdening the state exchequer. Thus, the Central Board of Excise and Customs, New Delhi which is the nodal agency to ensure compliance of the provisions of the Act, had itself expounded and clarified the provisions relating to payment of interest on delayed refunds. 20. The circular can be read as a contemporaneous understanding and exposition of the intention and purport of the provisions of law. The courts have treated contemporary official statements as contemporary exposition and used them as aids to interpret even recent statutes. Thus in CCE Vs. Andhra Sugar Ltd. Mukharji, J. (as His Lordship then was said : (SCCp 146, para 5). "it is well settled that the meaning ascribed by the authority issuing the notification, is a go....