2014 (11) TMI 961

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....en in the month of Nov. 2009 and Jan 2010.The Deputy Commissioner, Customs, Central Excise and Service Tax, Nanded Division vide his Order-in-Original No. 50/R/2009, dated 12-3-2010 rejected all the 10 rebate claims filed by the assessee. 2.1.2 Being aggrieved by the said Order-in-Original No. 50/R/2009, dated 12-3-2010 the assessee filed an appeal before the Commissioner (Appeals), Aurangabad. The Commissioner (Appeals) vide his Order-in-Appeal No. AGS (137) 64/2010, dated 12-7-2010 rejected the appeal filed by the assessee. 2.1.3 Being aggrieved by the said Order-in-Appeal No. AGS (137) 64/2010, dated 12-7-2010 the assessee filed a revision application before the Joint Secretary (Revision Application) New Delhi. The Joint Secretary (Revision Application) has decided the revision application of the assessee vide Order No. 198/2011-Cx, dated 24-2-2011 [2011 (268) E.L.T. 125 (GOI)] and the revision application of the assessee is allowed. 2.1.4 Following the revision Order No. 198/2011-CX, dated 24-2-2011 passed by the Joint Secretary to the Government of India, New Delhi the Deputy Commissioner, Central Excise, Nanded decided the said 10 rebate claims of the assess....

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.... 86/2011, dated 4-8-2011 set aside the impugned letter F. No. V (18) 22/REF/Sanket/INT/2010-11, dated 5/13-4-2011 issued by the Deputy Commissioner, Central Excise & Customs, Nanded Division with consequential relief and allowed the appeal filed by the assessee. 3. Being aggrieved by the impugned Orders-in-Appeal, the applicant department has filed these two revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 Grounds of Revision Application No 198/643/2011-RA (OIA No. 142/2011, dated 4-8-2011) :- 3.1.1 The Commissioner (Appeals), Aurangabad rejected departmental appeal filed against Order-in-Original No. 20/RBT/DC/2011, dated 7-3-2011 passed by the Deputy Commissioner, Central Excise and Customs, Nanded relying upon Revision Order No. 198/2011-CX, dated 24-2-2011 which appears to be not proper and legal as revision order appears to be not proper and legal on the following grounds :- (i)      In the impugned Order No. 198/2011-Cx dated 24-2-2011 the Joint Secretary has erred in holding that non following of the procedure for self removal and the conditions of Notific....

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....C-MUM-S.T. = 2011 (24) S.T.R. 17 (Bom.)], which is not relevant and applicable to this case as the issue is totally different. Issue involved in the said Writ Petition is "Service Tax-Refund- Interest for delayed refund-Refund claim rejected by the original authority and subsequently sanctioned consequent to the remand order of Commissioner (Appeals) allowing the claim-Petitioner entitled for interest from three months from the date of filing the original claim-contention that the interest will be applicable only after the resubmission of the documents in remand proceedings is not valid-section 11BB of the Central Excise Act, 1944-order of the Deputy Commissioner declining the interest is set aside and the petition allowed." In this case there is no remand order of any authority and refund is arised out of GOI revision order No. 198/2011-CX, dated 24-2-2011 and refund has been sanctioned by the Deputy Commissioner of Central Excise and Customs, Nanded Division on 7-3-2011 well within 3 months from the date of Revision order dated 24-2-2011. 3.2.2 Hon'ble CESTAT's decision in the case of Samarth Engineering Co. P. Ltd. reported in 2008 (226) E.L.T. 122 (Tri.-Kolkata) is squar....

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....sion applications. Personal hearing held on 12-3-2014 was attended by Shri V.D. Kulkarni, Superintendent (Review), Aurangabad who again reiterated the grounds of revision application. The respondent neither attended hearing on these dates nor sought adjournment of case to any other date. 6. Government has carefully gone through the relevant case records and perused the impugned Orders-in-Original and Orders-in-Appeal. 7. On perusal of records, Government observes that in this case the Deputy Commissioner of Central Excise, Nanded has sanctioned the rebate claim vide order dated 7-3-2011 in pursuance to GOI revision order No. 198/2011-CX, dated 24-2-2011. However department filed appeal against the said sanction order on the ground that the GOI Revision Order No. 198/11-CX, dated 24-2-2011 was not accepted by department and writ petition against said order was filed in the Hon'ble High Court of Bombay. Commissioner (Appeals) held that the GOI Revision Order is neither stayed nor set aside by High Court for and therefore rejected the appeal of department. The respondent party was not granted interest for delayed payment of rebate claim and therefore they also filed appeal....

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....n : Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise or Dy. Commissioner of Central Excise under sub-section (2) of Section 118, the order passed by the Commissioner Appeals, Appellate Tribunal as the case may be, the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. " Government observes that as per Explanation to Section 11BB, where the refund/rebate claim is allowed consequent to the order of appellate authority or any Court against the order of the Asstt./Dy. Commissioner, Central Excise, the order of the appellate authority/Court shall be deemed as an order passed under sub-section (2) for the purposes of this Section. 10. Government notes that Hon'ble Supreme Court in the case of M/s. Ranbaxy Laboratories Ltd. v. UOI reported on [2011-TIOL-105-S.C.-CS = 2011 (273) E.L.T. 3 (S.C.) = 2012 (27) S.T.R. 193 (S.C.)] has categorically held as under : "9. It is manifest from the afore-extracted provisions that Section 11BB of the Act comes into play only after an order for refund has been made under Se....