TaxTMI 
TaxTMI 
2014 (12) TMI 820
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....f duty paid through PLA by way of re-credit under section 5A of the Central Excise Act, 1944 (hereinafter referred to as the Act) and also claimed rebate of duty under Section 11 B of the Act on the same duty of the exported goods which appears to be double claim of benefit, as refund granted by way of self-credit makes the goods exempted and no rebate can be allowed on the exempted goods. Therefore all the rebate claims filed by the respondent were proposed for rejection under Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as the Rules) read with para (1) of the Notification No. 39/2001-CE dated 31.07.2001 and sub-para (a) of para 2 of Section 11B of the Act. Meanwhile, CBEC issued Circular dated 08.12.2006 wherein it was clarified that the goods manufactured availing the benefit of the Notification No. 39/2001 was not eligible for rebate. The Board issued another Circular No. 2091/11/2005.Cx-6 dated 03.04.2007. wherein, it was clarified that the goods cleared under an area based Notification were not eligible for rebate under Rule 18 of the Rules. 2.1 Being aggrieved with the above circulars, the respondent filed SCA No. 12638/2008 with Hon'ble High Cou....
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....t did not permit such claims to be sanctioned. Only when the law was settled by the Apex Court In case of Union of India V. Welspun Gujarat Stahl Rohren Ltd. by its order dated 23.07.2010, the eligible rebate was sanctioned to the said assessee. This was done within three months from the date of the Hon'ble Supreme Court's order. No interest was therefore, required to be paid as laid down in the decision of Division Bench of the Gujarat High Court in case of Padmanabh Silk Mills v. Union of India reported in 2006(193) ELT 536(Guj.). (iii) Further, the said judgment dated 29.09.2011 passed by the Hon'ble High Court of Gujarat in the case of M/s Welspun Trading Ltd, Kutch, was not accepted by the Department and a proposal for filing a Special Leave Petition before the Hon`ble Supreme Court was forwarded to the Board on 19.10.2011. 4.2 The CESTAT, vide the Order No. A/ 1306/WZB/AHD/2012 dated 21.08.2012 held that since the first appellate authority had passed an order on the matter of rebate claim, the appeal lies with Joint Secretary in the Govt. of India and accordingly transferred the file to Joint Secretary in the Govt. of India. 4.3 During the meantime Hon'ble Su....
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.... period of three months from the date of receipt of the application. The Explanation appearing below proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the court, then for purpose of this section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1)of Section 118 of the Act and that the said Explanation does not have any bearin....
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....6 December 2007 when the notice to show cause was dropped by the Commissioner of Central Excise. The rebate claims were sanctioned within a period of three months thereafter by the Assistant Commissioner (Rebate) and hence, no interest was payable. On the other hand, it has been urged on behalf of the respondent that the law has been settled by the judgment of the Supreme Court in Ranbaxy Laboratories Ltd. vs. Union of India and consequently no interference in the exercise of the jurisdiction under Article 226 of the Constitution is warranted. 3. The Supreme Court in its decision, in Ranbaxy (supra) considered the provisions of Section 11B and 11BB of the Central Excise Act, 1944 and held that Section 11BB lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under, sub-section (1) of Section 11B, then the applicant shall be entitled to court interest at such rate as may be fixed by the Central Government. The supreme court observed that the explanation to Section 11BB introduces a deeming fiction to the effect that where the order for refund is not made....