TaxTMI 
TaxTMI 
2018 (11) TMI 20
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....ide Order-in-Original dated 23^rd September, 2010 and the appeal thereof was also rejected vide order dated 7^th August, 2011. Being aggrieved the appellant approached this Tribunal who vide final order No. E/5580/2017 dated 4^th August 2017 allowed the appeal thereby allowing the refund. It is thereafter that the appellant filed another application on 28^th August, 2017 praying to process of refund app0lication dated 1^st January, 2010 the said application was adjudicated initially vide Order-In-Original dated 2^nd November, 2017 vide which the refund of service tax of Rs. 603113(as was originally prayed) submitted was allowed to be in cash however there was no order as to the payment of interest. Being aggrieved the appeal was filed the s....
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....within a period of less than three months there was no question of granting of any interest on the amount refund. Justifying the order, Ld. DR has prayed for the appeal to be dismissed. 6. After hearing both the parties and perusing the case records, I am of the opinion that the question to be considered here is as to whether the Revenue is liable to pay interest under Section 11 BB of the Act of which commences from the date of expiry of three months from the date of receipt of application for refund or on expiry of the said three months period from the date on which the order of refund is made. For the purpose, the relevant provisions need to be looked into Section 11 B and 11BB as extracted below; "11B.Claim for refund of duty.-(1)....
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....on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty of excise as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub- section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to----- (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's current acc....
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...................................... "Section 11BB, the pivotal provision, reads thus: "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 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 dut....
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.... perusal thereof shows that clause (ec) is relevant for sub-Section 5 only which further classifies that the period of three months to reckon from the date of judgment decree order or direction is applicable only in the case where any application under Section 11 B sub-Section 1 has not been filed. 8. A conjoint reading of all the above said provisions further makes it clear that; "Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act 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 of....
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....Laboratories (supra) vs. Union of India & ORS 2011-TIOL-105-SC-CX and Gurjat State Fertilizers and Chemical Ltd. vs. Commissioner of Central Excise and Service Tax, Anand 2018-TIOL-485-CESTAT-AHM. 10. The Hon'ble Apex Court has also clarified that the Boards own Notification dated 1/10/2002 has given a clear direction to the Department in case claims of non payment of interest in refund/rebate cases clarifying that the authority has not to wait for any order specifically payment of interest. The moment department becomes liable under Section 11 BB the consequence of payment of interest shall follow. The above adjudication is very much binding on this Tribunal. 11. In addition I am of the opinion that the Explanation to Section 11 BB f....