AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (12) TMI 498
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....paid in excess for the period from 13.04.2010 to 30.04.2010. The said refund was sanctioned vide the order of Dy. Commissioner dated 09.07.2010. However, out of the said sanctioned amount only Rs. 73678/- were refunded to the appellant in cash and remaining amount of Rs. 1,66,322/- was adjusted against the outstanding arrears of interest on pending duty liability amounting to Rs. 2,30,525/-. The said liability of Rs. 2,30,525/- was proposed vide a show cause notice dated 28.11.2018 for the wrong availment of cenvat credit to the extent of the said amount. The said demand was confirmed vide the order of Dy. Commissioner dated 07.07.2004 alongwith the interest and the penalty. It is against the said interest that the amount of Rs. 1,66,322/- ....
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....ated 09.02.2018. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Ms. Sukriti Das, Advocate for the appellant and Shri K. Poddar, ld. D.R. for the Department. 3. It is submitted on behalf of the appellant that the duty of Rs. 2,40,000/- was ordered to be sanctioned vide an order of Assistant Commissioner dated 09.07.2010. However, the refund in cash of Rs. 1,66,322/- was not made till 09.11.2016 i.e. after a delay of 6 years of the order of refund. According to Section 11BB of the Central Excise Act, 1944, interest is payable in case the refund is not made within 3 months of the date of the application. The denial of the interest claim is therefore, erroneous and is liable to be set aside. Ld. Counsel has relied upo....
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....thin 3 months of the sanction. No question of interest at all arises. Appeal is prayed to be dismissed. 5. After hearing both the parties, I am of the opinion that there is no dispute that whenever the amount was sanctioned, the refund thereof was made within the statutory limit of 3 months as prescribed by Section 11B of CEA, 1944. The only controversy is that the amount of said refund which got initially adjusted against the outstanding liability of the appellant, if subsequently that liability is set aside, the said period of 3 months has to be counted whether from the date of the initial sanctioning order or from the date of doing away the liability qua which the said amount was adjusted. There is no dispute to the legislative intent t....
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....uty and interest, if any, paid on such duty to any other person; (e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. 6. This provision make....
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.... 11B, 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." 7. The bare perusal makes it clear that the refund has to be made within 3 months from the date of receipt of application. Part of refund in the present case within 3 months is not disputed. Since the liability against which the remaining part was adjusted has been subsequently set aside by the order of this Tribunal, Explanation B (ec) to sub-clause (5) of 11 B requires reliance, which reads as follows:- "Explanation (B) (ec) to sub-clause (5) of Section 11 B of Excise Act (ec) in case where the duty b....