TaxTMI 
TaxTMI 
2017 (7) TMI 163
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....e under claim of rebate. The appellant filed refund claim for the duties paid on exported goods. A show cause notice dt. 12.5.2006 came to be issued to the appellant proposing to disallow the rebate claim to the extent of NCCD, AED and Education Cess on the ground that the manufacturer located in the State of Jammu & Kashmir had taken Self Credit of the elements of NCCD, AED and Education Cess under the scheme of Notification No 56/2002-CE. Therefore the appellant was not entitled to the rebate of these excise duties for the exported goods. The Assistant Commissioner vide two orders being OIO No.354/R/06 dt. 21.6.2006 and 401/R/06 dt.27.6.2006 granted rebate of Basic Excise Duty and Special Excise Duty while rejecting rebate claims pertaining to the elements of NCCD, AED and Education Cess. Being aggrieved by the above order, the appellant filed appeal before the Commissioner (Appeals) who held that appellants rebate claim for NCCD, AED and Education Cess are admissible. Complying the order of the Commissioner (Appeals), the Assistant Commissioner of Central Excise sanctioned and paid rebate of NCCD, AED and Education Cess by passing two orders being OIO No.34/R/09 and OIO No. 35/R....
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....ion of the Tribunal in the case of Shree Ram Steel & Rolling Industries Vs. Commissioner of Customs, Jamnagar - 2004 (172) E.L.T. 108 (Tri.-Mumbai) which was upheld by the Hon'ble Gujarat High Court as reported at 2006 (105) ELT 82 (Guj.). She further submits that the Commissioner (Appeals) has erred in contending that the NCCD, AED and Education Cess become rebatable only by virtue of Section 87 of the Finance Act and, therefore prior to that the rebate was not payable, therefore there is no delay in sanction of rebate. In this regard she submits that even for the earlier period the Commissioner (Appeals) vide Order in Appeal No.KKS/(12-13)12-13/MI/2009 dt. 12.2.2009 held that appellant was entitled to rebate in respect of NCCD, AED and Education Cess. Therefore, it was not open for the Revenue and Commissioner (Appeals) to hold that the appellant was not entitled to rebate of above excise duties before enactment of Section 87 of the Finance Act, 2008. The rebate claim was admittedly filed in February & April 2006 but the rebate of NCCD, AED and Education Cess was only paid in June 2009. Therefore there is a delay in paying the rebate for which the appellant is entitled for th....
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....he issue relates to the grant of interest of rebate in respect of export of goods. He submits that as per Section 35B (1) of Central Excise Rules, 1944, in any case if issue relates to rebate, the jurisdiction lies with the Revisionary Authority and not before this Tribunal. He also raised objection that the present appeal cannot be heard by Single Member Bench for the reason that issue relates to the rate of duty of excise in terms of the Notification No.56/2002-CE. Therefore the case to be heard by Division Bench. In this regard he placed reliance on the judgement of the Hon'ble High Court of Jammu & Kashmir in the case of Commr. Of Cus. & C. Ex., Jammu Vs. Bharat Box Factory Ltd. - 2008 (231) E.L.T. 416 (J & K). He submits that the refund of all the three duties were arisen only due to the amendment made by Section 87 in the Finance Act, 2008 by amending Rule 18. Before said amendment the rebate was not payable, therefore during such period it cannot be said that there is a delay in sanctioning the rebate. The rebate was sanctioned after enactment of the retrospective amendment therefore there is no delay in sanctioning the rebate, hence no interest is payable. In this regar....
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....issue of rate of duty or interpretation of Notification No.56/2002-CE is involved in the present case. Therefore, I do not find anything in the order to suggest that the issue involved is of rate of duty or interpretation of notification. Being the issue involved is confined to interest on rebate already sanctioned, the single member bench has jurisdiction to hear this case, accordingly this objection raised by the Ld. AR is also rejected. Now, I proceed to decide the merit of this appeal. The Commissioner (Appeals) denied the interest on the ground that the refund become payable only by virtue of Section 88 of the Finance Act, 2008 by which Rule 18 was amended before that there was no occasion to grant the rebate to the appellant, therefore there is no delay in sanction of the refund. In this regard, it is pertinent to read the retrospective amendment enacted under Section 88 which is reproduced below: "(1) In the Central Excise Rules, 2002, made by the Central Government in exercise of the powers conferred by section 37 of the Central Excise Act, rule 18 thereof as published in the Official Gazette vide notification of the Government of India in the Ministry of Finance (Departme....
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....July, 2001], or notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) number G.S.R. 764(E), dated the 14th November, 2002 [56/2002-Central Excise, dated the 14th November, 2002], number G.S.R. 765(E), dated the 14th November, 2002 [57/2002-Central Excise, dated the 14th November 2002 1st day of March, 2002 to 7th day of December, 2006 (both days inclusive). From the above retrospective amendment it can be seen from Sub-Section (2) of Section 88 the amendment is effective for all the purpose during the period 1.3.2002 to 7.12.2006. In view of this, the rebate sanctioned by the department was payable during the said period. Therefore, since there is delay beyond three months from the date of filing of application the interest is clearly payable to the appellant. I am also of the view that for whatever reason, if there is delay in sanction of rebate in terms of Section 11B the interest is payable to the assessee. Section 11BB is reproduced below: "SECTION 11BB. Interest on delayed refunds. If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months fr....
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.... shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a 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 the 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....
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....onal Central Excise officers had taken the view that since the Tribunal had in its order not directed for payment of interest, no interest needs to be paid. 2. In this connection. Board would like to stress that the provisions of section 11BB of Central Excise Act, 1944 are attracted automatically for any refund sanctioned beyond a period of three months. The jurisdictional Central Excise Officers are not required to wait for instructions from any superior officers or to look for instructions in the orders of higher appellate authority for grant of interest. Simultaneously, Board would like to draw attention to Circular No. 398/31/98-CX., dated 2-6-98 [1998 (100) E.L.T. T16] wherein 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, 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. (....
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....11BB of the Act is concerned, emphasis has been laid on the date of receipt of application for refund. In that case, having noted that application by the assessee requesting for refund, was filed before the Assistant Commissioner on 12th January 2004, the Court directed payment of Statutory interest under the said Section from 12th April 2004 i.e. after the expiry of a period of three months from the date of receipt of the application. Thus, the said decision is of no avail to the revenue. 15. In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. (ii) In the case of Focus Contrade Pvt. Ltd.(supra) held that- 2. The relevant facts are that : during the period from September 2006 to November 2006, 17 rebate claims were filed by the respondent No.1-assessee. Show-cause notices were issued by the adjudicating authority on 14th February 2007 to show ....