2021 (6) TMI 462

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... rejected by Commissioner (Appeals) vide Order in Appeal No. 170(GRM)ST/JPR-I/2007 dated 15.5.2007. When the said order was assailed before CESTAT, stay was granted with the direction to deposit Rs. 60,000/-. The said amount was got deposited vide challan dated 31.11.2007. The appeal was partially rejected. Being aggrieved thereof, the appellant had filed the appeal before Hon'ble High Court at Jaipur. Which was decided vide order dated 13.10.17 remanding the matter back to the authority. However, the amount of Rs. 2,24,624/- was deposited under protest by the appellant. 1.2 It is thereafter the appellant filed the refund claim of the said amount as was deposited by the appellant on 9.9.04. The appellant filed the refund on 24.6.06 under section 11 B of CEA, 1944. 1.3. The said refund was rejected, the appeal thereof was also rejected. However, CESTAT vide Final order No. 453/11 dated 09.09.2011 allowed the said refund. But the Asstt. Commissioner Kota vide Order-in-Original No. 53/R/2013 dated 31.3.2013 had adjusted the said amount against the demand of Rs. 3,11,182/- as was confirmed. 1.4 Meanwhile the assessee had filed the refund claim on 28.1.13 claiming the refund....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed. 4. While rebutting these arguments, it is submitted by learned Departmental Repressenative that the entitlement to claim of refund accumulated / accredited to the appellant sanctioned thereto from the decision of this Tribunal vide order dated 9.9.2011 but the refund application dated 28.3.2013 was filed post the aforesaid order. Accordingly, that application becomes the application of original refund claim and the appellant has rightly been denied the claim of interest with effect from 20.9.2006 impressing upon that the Adjudicating Authority has rightly calculated the interest for the period from, 28.4.2013 to 9.3.2018 on delayed payment of refund claim, that the appellant's application is prayed to be dismissed. 5. After hearing the parties, perusing the record of this appeal and looking into the facts and circumstances of present case, it is held that the question in short to be adjudicated vide the impugned appeal is: "Whether the liability of Revenue to pay interest under section 11BB of Central Excise Act, 1944 commencing from the date of expiry of three months with effect from the date of receipt of application for refund or on expiry of the said period w....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....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 account maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty 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, ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....se & Customs, New Delhi, wherein referring to its earlier Circular dated 2nd June 1998, whereby a direction was issued to fix responsibility for not disposing of the refund/rebate claims within three months from the date of receipt of application, the Board has reiterated its earlier stand on the applicability of Section 11BB of the Act. Significantly, the Board has stressed that the provisions of Section 11BB of the Act are attracted "automatically" for any refund sanctioned beyond a period of three months. The relevant portion of the Circular reads thus : "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/reba....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....aqf) Laboratories. The relevant portion reads as under:- "15. Sub-section (2) of Section 11B stipulates filing of an application by the assessee before the competent authority. It also postulates that the said authority is required to be satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty is refundable. The application, as submitted by Mr. Adhyaru, has to be an application in law. Section 11BB which deals with interest on delayed refund clearly and categorically predicates that if any duty ordered to be refunded under sub-section (2) of Section 11B is not refunded within three months from the date of receipt of the application under sub-section (1) of Section 11B, there shall be paid to the applicant interest at the notified rate 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. The significant words are "expiry of three months from the date of receipt of such application". 12. Few circulars have also been appraised like Circular dated 30.5.1995. Para 2 (d) of the said Circular reads as follows: "2. Keeping the above in view....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ate the principle stated in Ranbaxy Laboratories Limited (supra). In the said case, the question arose whether 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 or on the expiry of the said period from the date on which the order of refund is made. The two-Judge Bench after analyzing the provision has held as follows :- "12. It is manifest from the afore-extracted provisions 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 the Act, then the applicant 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....