2022 (6) TMI 160

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....ty disallowed the Cenvat Credit of Rs. 2,90,409/-. Being aggrieved by the said order dated 05.10.2016. the appellant preferred an appeal before the Commissioner (Appeals) GST and Central Excise Rajkot who Vide OIA No. RAJ/EXCUS-000-APP- 130-2017-18 dated 01.12.2017 set aside the said OIO and allowed the appeal filled by the appellant. In view of the said OIA the appellant filed the refund claim which was sanctioned refund of Rs. 3,28,075/- on 28.02.2018. The appellant with a view that they are entitled for interest on this sanctioned refund filed an appeal. The Learned Commissioner (Appeals) vide impugned dismissed the appeal holding that the appellant is not entitled for the interest as the refund claim was sanctioned within the stipulated....

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....yment made by them. The refund application was filed after the commissioner (Appeals) allowed the cenvat Credit. The refund was sanctioned within 2 months from the date of filing application As per the Hon'ble Supreme Court in the judgment of Ranbaxy Laboratories Ltd. Vs.Union Of India- 2011(273) ELT 3(S.C), the interest is payable only when there is a delay beyond 3 months from the filing of application of refund. In the present case the refund was sanctioned within 3 months. I also note that the refund has arisen out of order of the commissioner (Appeals). In this regard it is pertinent to refer to the relevant provision under Section 11B, in particular Clause (ec) sub-clause of (B) of sub-Section 5(4) which reads as under: "(ec)....

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.... even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of duty was intended to prevent the incidence of interest and liability accruing from the non-payment of duty, and hence, it cannot be termed as deposit. Therefore, the payments made by the petitioner towards Excise Duty in Challans Form No. TR-6, can never partake characteristic of pre-deposit as mentioned in Section 35F of the Act, petitioner. as argued by learned advocate for the petitioner. Under the circumstances, the contention that the amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits deserves to be rejected. Firstly as discusse....