AI Drafter 
TaxTMI 
TaxTMI 
2016 (10) TMI 452
X X X X Extracts X X X X
X X X X Extracts X X X X
....present controversy are that the Petitioner i.e. Jindal Drugs Pvt. Ltd. (formerly known as "M/s Jindal Drugs Ltd") is engaged in manufacture of Cocoa powder / Cocoa Butter falling under Chapter sub-heading No.1804 00 00 and 1805 00 00 of the Central Excise Tariff Act, 1985 (hereinafter referred to as the "Tariff Act"). The Petitioner undertakes labeling/repacking of Cocoa Butter and other products at its Taloja Factory which amounts to manufacture in terms of Note 3 of Chapter 18 of the First Schedule to the Tariff Act read with Section 2 (f) of the Central Excise Act, 1944 ( for short "the Act"). 4. The Petitioner had applied for and was granted registration bearing No. AAACJ1000AXM006 On 21st May, 2008 under Rule 9 of the Central Excise Rules, 2002 as a manufacturer. The Petitioner availed the CENVAT credit of the duty paid on the inputs received and utilized the same for the payment of duty on the goods cleared for home consumption. 5. It is the case of the Petitioner that it claimed refund of unutilized CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004. Respondent No.2 disputed the entitlement of the Petitioner to the CENVAT credit of the duty paid on inputs on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Commissioner (Appeals), Respondent No.2, by the impugned order, sanctioned the refund of Rs. 42,79,82,902/- and ordered recredit of Rs. 1,61,12,607/- out of the total refund of Rs. 45,60,91,106/- claimed by the Petitioner for eight quarters beginning from October 2012 to September 2014. Respondent No.2 rejected a part of the refund to the extent of Rs. 1,61,12,607/- on the ground that there was erroneous calculation of the refund amount in terms of the formula prescribed under Notification 27/2012- CE (NT) dated 20th June, 2012, due to nonconsideration of the value of scrap sale of corrugated boxes in the turnover value. Respondent No.2 allowed the re-credit of the same to the Petitioner. The other rejection of refund of Rs. 1,19,95,597/- was due to non-consideration of the revised refund claims that were filed by the Petitioner at the instance of the Revenue. This amount was neither granted as a refund nor allowed as a re-credit. Respondent No.2, in the impugned order also did not grant interest on the delay in sanctioning / granting the refund to the Petitioner under Section 11BB of the Act. It is in these circumstances that the present Writ Petition has been filed inter alia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in-original, filed Appeals before the Commissioner of Central Excise (Appeals), who thereafter set aside the orders of Respondent No.2 and was pleased to grant the refunds. Mr. Shah further submitted that Respondent No.2 passed the impugned order ex-parte without giving the Petitioner any opportunity to be heard. Respondent No.2 then rejected part of the claim without hearing the Petitioner and without putting the Petitioner to notice of the purported rejection of the part of the refund claim. We must mention here that this rejection of part of the refund claim has now been resolved between the parties as per the letter dated 29th September, 2016 issued by Respondent No.2 and referred to earlier. Mr. Shah further submitted that though Respondent No.2 has now granted the entire refund as agreed, he did not grant any interest on delayed refunds and as mandated by section 11BB of the Act. He therefore prayed that the impugned order be set aside and the matter be sent back to Respondent No.2 for the limited purpose of calculating and paying interest to the Petitioner in terms of section 11BB of the Act. 14. On the other hand, Mr Dwivedi, learned counsel appearing on behalf of Respon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) of section 11-B 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; Explanation - 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, under sub-section (2) of section 11-B, the order passed by the Commissioner (Appeals) Appellate Tribunal ((National Tax Tribunal) or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.)" 16. This section clearly stipulates that if any duty is ordered to be refunded under sub-section (2) of section 11-B of the Act to the applicant and the same is not refunded within three months from the da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with the postponement of the date from which interest becomes payable under Section 11-BB of the Act. 13. Manifestly, interest under Section 11-BB of the Act becomes payable, if on 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 11-BB 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 11-B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11- BB of the Act becomes payable. 14. It is a well-settled proposition of law that a fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision; there is nothing to be read in; nothing to be implied and there is no room for any intendment. (See Cape Brandy Syndicate v. IRC [(1921) 1 KB 64] and Ajmera Housing Corpn. v.CIT [(2010) 8 SCC 739] .) 15. At this juncture, it would be apposite to extract a Circular dated 1-10-....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../98-CX, dated 2-6-1998 [(1998) 100 ELT T- 16] wherein the Board has directed that responsibility should be fixed for not disposing of the refund/rebate claims within three months from the date of receipt of application. Accordingly, the jurisdictional Commissioners may devise a suitable monitoring mechanism to ensure timely disposal of refund/rebate claims. Whereas all necessary action should be taken to ensure that no interest liability is attracted, should the liability arise, the legal provision for the payment of interest should be scrupulously followed." (emphasis supplied) 16. Thus, ever since Section 11-BB was inserted in the Act with effect from 26-5-1995, the Department has maintained a consistent stand about its interpretation. Explaining the intent, import and the manner in which it is to be implemented, the circulars clearly state that the relevant date in this regard is the expiry of three months from the date of receipt of the application under Section 11-B(1) of the Act." (emphasis supplied) 18. On a harmonious reading of the provisions of sections 11-B and 11-BB along with the observations of the Supreme Court, it is abundantly clear th....