AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 333
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....terest cannot be submission of documents E/86137/2020 25.08.2020 Assessee Incorrectly denies the interest for the period 2002 to November 2010 E/85290/2021 25.08.2020 Revenue Incorrectly granted interest for the interest for the period 30.11.2010 to October 2017 2.1 On the issues under challenge in the four appeals the observations made in the impugned order are reproduced below: Order in Appeal No SK/115/LTU/MUM/2016-17 dated 28.03.2017 The details are as given below: Particulars Amount in Rs (a) Amount Originally claimed as Refund 5,53,97,108 (b) Less: Amount disallowed on the ground of unjust enrichment 1,17,93,761 (c) Less: Amount disallowed on the ground of unjust enrichment 38,19,911 (d) Less: Refund in respect of Universal Stainer disallowed for payment of duty 16,08,942 (e) Less: Adjustment of refund already sanctioned to the appellants (includes Rs.38,19,911 in (c) above) 45,22,894 (f) Balance Refund Claim admissible 3,36,51,600 The Commissioner (Appeals), Large Taxpayer Unit, Mumbai vide Order-in-Appeal dated 30.1.2012 upheld the Order-in-Original dated 6.2.2009 and rejected the appeal fil....
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....1 mostly in favour of the appellant. Against this OIA dated 31.12.2001, the department had not filed any appeal. Thus it has become final (ii) The Commr (A)'s OIA dated 31.12.2001 was subsequently relied upon in the Commr (A) OIA dated 30.9.2002 (in r/o 1st period) which attained finality by the Hon'ble High Court Order dated 21.2.2006. Finality of the OIA dated 31.12.2001 has thus been reinforced. (iii) Pursuant to the OIA dated 31.12.2001, the appellant had vide their letter dated 29.7.2002 addressed to the Superintendent for quantification of the differential duty/refund. It is reproduced as under "However, as was done consequent to the Assistant Commissioner's orders of September 1997, we request you to calculate the differential duty on final assessment and allow us to take the credit of excess duty paid in terms of Order- in-Appeal dated 7.1.2002 passed by the Hon'ble Commissioner(Appeals)." (iv) Based on above order of the Commr(A) and the Asstt. Commr. Order dated 11.9.1997 ordering for finalizing the provisional assessment, the assessing officer i.e. Superintendent, the proper officer for assessment (or any senior officer....
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....refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person:" the limitation of one year shall not apply where any duty has been paid under protest. 14. Even otherwise that for provisional assessment was finalised during year 2001, the refund cannot be denied as the duty was paid under protest. The fact of duty payment by protest is not disputed. I thus find that the appellant had paid duty under protest hence the limitation of one year shall not apply. Hence I find the rejection of refund claim on the ground of limitation is incorrect as t....
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.... to be unconstitutional, to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to third party - No civil suit for refund of duty maintainable - Writ jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 unaffected by said Section 118 or Section 27 but writ court to have due regard to the provisions of Central Excise and Customs Act and to refuse grant of relief in automatic refund and claimant to prove burden of duty not passed on to third party." In the impugned order there is mention of the appellant's contention on the basis of the above CA certificate as well as that this amount was deposited much later on and in one go. The order also mentioned about appellant's narration of this certificate vis-a vis their profit and loss account but there is no discussions on the unjust enrichment. The refund was rejected on time bar aspect. The order is silent on this. As this amount was deposited much later on in one go and there is certification of C.A. certificate. I have no hesitation ....
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....und claim amount without having entire relevant documents essential for calculation of refund amount. I, therefore, find that the date 30.11.2010 should be considered as relevant date for the purpose of calculation of interest since department was having all the relevant documents and also since department concluded refundable amount on 30.11.2010. This goes in line with the decision of the Commissioner (Appeals) OIA No. MKK/423/RGD APP/ 2018 dated 16.01.2019 and the judgment of Hon'ble Tribunal in case of M/s Malwa Cotton Spinning Mills Ltd. Vs CCE, Ludhiana, as reported in 2013 (2) ECS (86) (Tri - Del). 10. I find that adjudicating authority vide impugned order decided that interest is admissible from 30.10.2017 because application with all required documents for processing of fresh refund claim was filed by the assesee on 31.07.2017 as mentioned in the OIO No. 58/Ref/Gy/2017-18 dated 27.07.2018. However, I have seen the letter dated 31.07.2017 of the appellant addressed to the department and I find that this letter only requests department to remit the refund amount alongwith interest, consequent to the Commissioner (A)'s OIA No. SK/115/LTU/MUM/2016-17 dated 28.....
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....order dated 16.01.2019, the issue was again considered by the Assistant Commissioner, who vide his order in original number dated held as follows: "17. In compliance with and in accordance with the findings of Commissioner (Appeals) Order in Appeal No MKK/423/RGD APPL/2018 dated 16.01.2019 and having mindfully determined the date of commencement of interest on 29.10.2017, I hereby sanction interest amounting to Rs 14,94,899/- (Rs Fourteen Lakhs Ninety Four Thousand Eight Hundred and Ninety Nine Only) to M/s Asian Paints Limited situated at Asian Paints House, 6A Shanti Nagar, Santacruz (E), Mumbai 400055." 2.5 This order was challenged by the appellant assessee before the Commissioner (Appeals). The appeal was disposed off by the Commissioner (Appeals) vide impugned order dated 25.08.2020 which is subject matter of the third and fourth appeal in table in para 1 above, one filed by the revenue and other by the appellant assessee. 3.1 We have heard Shri Gajendra Jain along with Shri Rajesh Ostwal, Advocates for the appellant assessee and Shri Amrendra Kumar Jha, Deputy Commissioner, Authorized representative for the revenue. 3.2 Arguing for the appellant learned cou....
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....ation for claiming payment of interest. Explanation to section 11BB provides that the Order of the Appellate authority/ Court will be deemed to be an order of Assistant Commissioner passed under Section 11B(2). By insertion of the said explanation it is evident that intention of the legislature was to provide for payment of interest on the refunds not paid within three months from the date of receipt of refund application, initially rejected by the Assistant Commissioner, but later on allowed by the appellate authority. Reliance is placed on the following decisions: Ranbaxy Laboratories [2012 (27) STR 193 (SC)] Hamdard wakf Laboratories [2005 (188) ELT 476 (ALL)] affirmed at [2017 (51) STR 214 (SC) IVRCL Infrastructures & Projects Ltd. [2010 (257) ELT 33 (Bom)] Reliance Industries Ltd. [2015 (317) ELT 621 (T)] Once the taxing statue contains the provision relating to interest then payment of interest is automatic to the extent provided in statue. Kanhai ram Thekedar [2005 (185) ELT 3 (SC)] Qureshi Crucible Centre [1993 Supp (3) SCC 495] All the necessary documents were available with the department in ....
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....being dismissed by the Hon'ble Tribunal, Mumbai and the Hon'ble High Court of Judicature at Bombay, we are legally become entitled for the refund of excess duty paid by us during the relevant period and hence such a refund claim is filed by us. It should be noted that the excess duty was paid by us after the goods were cleared to the customer during the period from December 1978 to August 1997. Since the duty burden has been borne by us, there is not unjust enrichment involved in the present case. Hence the excess duty paid by us during the relevant period should be refunded by the department along with the interest calculated from the date of payment of duty till the date of refund to be made by the department. 2.2 The said claim was rejected by the Asstt. Commr. C.Ex. vide 48/R/08-09 dated 6.2.2009 on the grounds of limitation, unjust enrichment and non availability of documents. 2.3 The appellant then filed an Appeal No. 49/09/P against the above O-in-O with the Commr(A). The Commr(A) directed LTU for re-verification of entire refund claim from 1978 to 1997. The same was submitted by the Addl. Commr, LTU, Mumbai vide letter dated 30.11.2010 arr....
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....ctly rejected the balance refund & aforesaid amount of Rs.3,35,57,086/- is correctly refundable to them. 3.3 that the claim for Rs.3,73,02,659/- for the third period is not hit by Section 11B and therefore not barred by limitation. This claim has to be granted as a consequential relief giving effect to the orders passed in finalization proceedings. In the impugned Order-in-Original dated 21.10.2015, reminder application for the refund of the excess duty paid by the appellant has been rejected by the Assistant Commissioner by holding that it is hit by time limit set by Section 11B of the Central Excise Act, 1944. 3.4 that aforesaid contention raised in the impugned Order 21.10.2015 is incorrect & perverse. They have deposited excess duty pursuant to the orders passed in course of finalization of provisional assessment by various authorities. When the finalization had attained legal conclusion, the appellant filed a reminder to intimate the department for refund of the excess excise duty which has been paid by them, as a matter of consequential relief. 3.5 that treating the reminder letter dated 14.11.2006 as independent refund claim under Section 11B of th....
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....ainst the assessment order. 3.9 that in view of the above, rejection of the reminder filed by the appellant for refund of the excess duty paid by them on the ground of limitation is illogical & perverse. Hence, impugned Order-in-Original dated 21.10.2015 is liable to be set aside. 3.10 that they had paid excise duty under protest which became refundable consequence to the Bombay High Court's Order dated 21.2.2006. The appellants filed refund claim within one year from the date of this Order dated 21.2.2006. Therefore, the refund claim is filed within time limit prescribed under Section 11B of the Central Excise Act. 1944. 3.11 that even if the reminder application submitted by them for refund of the excess duty paid them is considered as refund claim in terms of Section 11B of the Central Excise Act, 1944, even then entire refund of the excess duty paid by them is admissible to them in view of the following submission. i) As per the impugned Order dated 21.10.2015, the refund application dated 14.11.2006 filed by them with respect to refund of the duty paid by them in third period, i.e., from July 1988 to August 1997 is time barred. The adjud....
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...., it is clear that the cash discount and bonus was allowed in the Order dated 30.9.2002 in view of Order dated 31.12.2001. However the department filed appeal before the Tribunal that allowance of cash discount and bonus is not correct. Since the department challenged the allowance of cash discount and bonus which is decided in favour of the appellants vide Order dated 31.12.2001, the Order dated 31.12.2001 cannot be said to have attained finality unless the appeal filed by the department is decided. v) If any appeal to finalisation Order is admitted wholly or partially by the higher authority, the Order appealed against looses the status of finalisation order and the department is under the obligation to pass fresh Finalisation Order giving effect to the Order-in-Appeal. In the absence of such denovo finalization, the assessment continues to be the provisional assessment. It is settled law that provisional assessment is provisional for all respect and therefore the time limit cannot start unless the assessment is finalized by the department. vi) In view of the above, the refund amount due to them for the 3rd period attained finality by the Bombay High Court's....
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....uence to the Orders/Letter finalizing the provisional assessment, they had informed the department that they are not in agreement with the Orders/Letters the application of which is requiring they are required to pay duty and they have filed appeal before the Appellate Forum against these Orders/Letters. This fact is not in dispute. It is well settled that in case where the assessee challenges the assessment order, the duty paid by the assessee consequence to that assessment order is to be treated as paid under protest. In this they relied on the paras 86 & 107 of Mafatlal Industries Ltd. Vs. UOI [ 1997 (89) ELT 247 (SC)]. xii) As per Section 11B of the CEA, refund claim is to be filed within one year from the relevant date. However, as per second proviso to Section 11B(1), the limitation of one year shall not apply where any duty and interest has been paid under protest. In such cases, where the duty is paid under protest, the period of limitation is to be reckoned from the date of Order consequence to which the amount become refundable. In view of the above, the refund claim in the present case became refundable consequence to the Bombay High Court's Order dated 21.2....
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.... case of Ashok Leyland has been affirmed by the Supreme Court in 1996 (83) ELT 143 (SC) & 1997 (92) ELT A129 (SC). 3.13 that as per Section 11B of the CEA, the refund claim is to be filed within one year from the date of the relevant date. In view of Clause (ec) of Explanation B to Section 118, in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any Court, the relevant date is the date of such judgment, decree, order or direction. 3.14 that in the present case, they paid amount demanded in Orders finalizing provisional assessment under protest and filed appeals against these Orders. The department also filed appeal against the Orders finalizing provisional assessments. The Commissioner (Appeals) decided the appeals of the assessee and the department. Against the order of the Commissioner (Appeals) the department filed appeal before the f finalization of provisional assessment would attain finality only when the appeal filed by the department was disposed of by High Court vide Order dated 21.2.2006. Therefore, the limitation period for filing of refund claim would start fro....
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....appellants within a period of one year from the High Court's dated 21.2.2006 is not barred by limitation under Section 11B of the Central Excise Act, 1944. Hence, the refund claim rejected in the impugned Order- in-Original dated 21.10.2015 is not correct & same is not sustainable under law. 3.19 that in the impugned Order-in-Original dated 21.10.2015, the adjudicating authority has relied upon the finding given by the Tribunal in the remanding Final order dated 16.1.2015 & held that once the issue has reached finality, duty paid cannot be considered as under protest & therefore, time limit of one year as provided in law will be applicable in such cases. The adjudicating authority held that since the provisional assessment with respect to third period has attained finality by the Order-in- Appeal dated 7.1.2002, hence, refund claim filed for the same on 14.11.2006 is time barred. The adjudicating authority has also placed reliance on decision of Dena Snuff (Petitioner) Ltd. Vs. CCE-2003 (157) ELT 500 (SC). 3.20 that in view of the detailed submission above, they have correctly filed the refund claim subsequent to the Hon'ble High Court order dated 21.2.200....
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.... (v) The appeal filed by the department in assessee's own case was dismissed by the tribunal reported as CCE Vs Dena Snuff Pvt Ltd [2000 (115) ELT 642 (T)] relying on the decision of Lachman Das Bihari Lal's case. The department filed appeal against the decision of the Tribunal before Supreme Court. The Supreme Court vide Common Order dated 28.8.2003 reported as CCE Vs. Lachman Daas Behari Lal [2004 (163) ELT A115 (SC)] dismissed the appeals of the department filed in Lachman Daas Behari Lal's case and assessee's case. Thus, the legal position that the assessee's product is classifiable under Sub- Heading 2404.60 attained finality by the Supreme Court's order reported as 2004 (163) ELT A115 (SC) supra. (vi) In case of appeal filed by the assessee before the Supreme Court against the order of the Tribunal denying refund claim, the assessee raised two issues: a. The first is that the Tribunal had misconstrued paragraph 108(iv) of the decision of this Court in Mafatlal Industries (supra) and that paragraph did not in any way preclude an application for refund being made in respect of duties paid under protest. b. The second su....
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....mission made by the appellants. Pursuant to the Commissioner (Appeals)'s O-in-A dated 7.1.2002, vide their application dated 29.7.2002 asked the department to quantify the differential duty/refund. Accordingly, the refund application was in fact filed on 29.7.2002 itself, which is within the time period of one year from the relevant date, i.e. Commissioner (Appeals)'s Orders dated 30.9.2002 and 31.12.2001. The department has till date not responded to that letter or have re-determined the liability pursuant to that order. 3.24 that in the impugned order dated 21.10.2015, the adjudicating authority has raised certain doubts & given findings to say that that letter dated 29.7.2002 cannot be considered as refund claim as required in law. As per the adjudicating authority, the letter dated 29.7.2002 cannot be considered as proper rebate claim filed under Section 11AB for the following reasons: (i) that letter is part of the series of correspondence that they had with department with respect to quantification of demand consequent to Order-in- Appeal dated 31.12.2001; (ii) that they had not submitted any working data as undertaken by them in the letter ....
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....efund claim but a part of correspondence between them & the department is incorrect and baseless. The fact that the letter was part of correspondence going on between them and department will not have any adverse effect of the correctness of the refund claim filed by the department. In the aforesaid as well they have requested the department to pay back the excess amount of the paid by them. 3.29 that w.e.f. 1.3.2002 no form for filing of refund claim has been prescribed under Central Excise Rules, 2002. Erstwhile Form 'R' was prescribed under Rule 1735 of the Central Excise Rules, 1944. However, no such form has been prescribed under Central Excise Rules, 2002. Therefore, the letter dated 29.7.2002 filed by the appellants for refund is a refund claim filed by the appellants and the said refund claim cannot be denied on the ground that it was not filed in the prescribed format. In view of above submissions, findings of the adjudicating authority given in the impugned Order-in- Original dated 21.10.2015 are not correct. 3.30 that even otherwise, the refund claim filed vide letter dated 29.7.2002 cannot be rejected on the ground that the refund claim was not....
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....ing authority has not raised any objections with respect to unjust enrichment with respect to refund claim of Rs.3,36,51,600/- for which they are contesting now. It is assumed that the Assistant Commissioner is satisfied and in agreement with them for the same. They crave leave to produce & content other submission with respect to unjust enrichment if required later on. 3.35 that they prayed to set aside the impugned order and grand the refund as well as allow the appeal in full with consequential reliefs." 4.3 From the facts as recorded in the above order of the Commissioner appeal dated 28.03.2017 it is quite evident that issue before the Commissioner (Appeals) was in respect of the rejection of the refund claim filed by the Appellant assessee on 14.11.2006 consequent to the decision of Hon'ble High Court of Bombay dated 21.02.2006. Commissioner (Appeals) has held that the said refund claim is not barred by limitation. Though the appellant assessee had referred to the rejection of the refund claim made by them vide the letter dated 29.07.2002, by the original authority, the arguments made against such rejection did not find any favourable finding from the Commissioner....
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....ional assessments in the case of the appellant assessee were finalized after the decision of the Hon'ble Bombay High Court on 21.02.2006, and accordingly the refund claim has to be filed within the time limit as prescribed taking the date of the order of High Court as the relevant date. In the impugned order, Commissioner (Appeals) have also recorded the finding that the "duty was paid under protest", that being so, the refund claim could have been never been held to be barred by limitation as per the proviso to Section 11B (1). Without any challenge to the above finding we do not find any merits in the appeal filed by the revenue. Thus the appeal no E/86570/2017 filed by revenue needs to be dismissed. 4.6 Appellant assessee has challenged the impugned order dated 16.01.2019, stating that date of submission of documents cannot be relevant date for computing the interest. After considering the provisions in law and the decision of Hon'ble Supreme Court in case of Ranbaxy laboratories [2012 (27) STR 193 (SC)], Ahmedabad Bench has in case of Bhilosa Industries Pvt Ltd [2022-TIOL-530-CESTAT-AHM] observed as follows: "6. We have carefully considered the submissions made by b....
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.... of refund of the duty. In a nutshell, what this section stipulates is that, once an application for refund has been made and the same is granted within a period of three months of receipt of such application, there would be no liability to pay interest. However, if the refund is granted after the expiry of the period of three months from the date of receipt of the application, then interest would also be payable on the amount of refund granted, from the date immediately after the expiry of three months from the date of receipt of such application, till the date of refund. 8. As per the statutory mandate of Section 11BB of the Act the department is under legal obligation to sanction the refund claim along with interest after the expiry of 3 months from the date of filing of the refund claim. In the present matter the time limit for payment of the refund amount to the Appellant by the Central Excise authorities (without interest) expired on 19-08-2005. Since, claimed amount was finally paid to the Appellant on 04.04.2016, in our considered view, the Appellant is entitled for the statutory interest from 20-8-2005 to the date when the refund was eventually paid, i.e., 04-4-20....