TaxTMI 
TaxTMI 
2026 (9) TMI 652
X X X X Extracts X X X X
X X X X Extracts X X X X
....nic applications; and were therefore heard together and are being disposed of by this common order. 2. The brief facts of the case are that the appellant is a manufacturer of coconut oil packed in large and small containers. The Central Board of Excise and Customs, vide circular no.890/10/2009 - CX, dated 03.06.2009, issued under Section 37 B of the Central Excise Act, 1944, clarified that the coconut oil packed in small containers up to 200 ml merits classification under Chapter Heading 3305 attracting excise duty, while the coconut oil packed in larger containers above 200 ml merit classification under Chapter 15 and are not subjected to excise duty. Pursuant to the circular, the Jurisdictional Range Officer vide letter dated 13.07.2009 asked the appellants to get registered and pay duty as applicable for the coconut oil manufactured and sold in small containers/pouch up to 200 ml. Aggrieved by the said direction, the appellant filed a writ petition in W.P (MD) No.10790 of 2009 before the Madurai Bench of the Hon'ble Madras High Court with a prayer to quash the said circular. The Hon'ble High Court vide its order dated 26.10.2009 granted an interim stay restraining the departm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ugh the appellant filed refund applications instantaneously after payment of duty under protest, it was only vide the order dated 29.04.2014 of the Hon'ble High Court on the writ petition filed by the appellant that decided the issue of exigibility of coconut oil packed in small containers and that therefore the claim for refund has validly arisen only from the date of application made on 31.01.2015 / 06.02.2015 and not from the date of filing the applications through ACES electronically, when no cause of action had arisen then. It was also alleged that the refund claim made by the appellant in the requisite form "R" filed after the Hon'ble High Court order was disposed of within three months from the date of filing of claim. Further, there was no claim for refund of interest in their claim dated 06.02.2015 and no appeal has also being filed against the orders dated 05.05.2015 and any favourable orders obtained. It was alleged that the claim for refund of interest under Section 11 BB of the Act therefore, appears to be ab initio void. After due process of law, the Adjudicating Authority vide a common order in original Nos.04,05, 06 and 07 /2019 dated 20.09.2019 rejected all the fou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he submissions on 20.04.2026, the date of hearing, submitting as under: a) The appellant is a manufacturer of coconut oil with brand name VVD having their unit at Tuticorin selling their goods both in large prepacked containers as well as small containers and sachets including less than 200 ml. Consequent to a dispute on the classification of the smaller packings of the coconut oil marketed, which was being classified by them under chapter 15 that attracted nil rate of duty, and the Department was of the view would fall under chapter 33 of the Central Excise Tariff Act as cosmetics, Board issued a Section 37B Circular classifying the same under chapter 33 attracting appropriate duty. The appellant filed a writ petition before the Hon'ble Madras High Court challenging the Section 37B order and obtained a conditional stay directing them to execute bond and furnish bank guarantee. The appellant had executed bond and bank guarantee in accordance with the conditional stay granted by the Hon'ble Madras High Court till March 2011. However, the range authorities issued a communication dated 18.12.2010 asking the appellant to register and pay the appropriate duties on the clearance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roceedings the Adjudicating Authority dismissed their claims despite the appellant stressing the point that interest is to be paid suo moto to them as per Section 11BB of the Act and the date of filing of their electronic claims is to be reckoned as the relevant date. The Original Authority dismissed their claims by issuing four identically worded orders recording the finding that the payment of duty was uncalled for and made by the appellant at their own peril while the Hon'ble High Court did not ask for it. The Department refunded the money after the Court's final order and it cannot be forced to pay interest for the fault of the appellant filing of the claims online, that the matter was sub-judice and therefore the date of application of the physical mode of claim in form R is appropriate inasmuch as the cause of action arose after the High Court pronouncing the orders. That they did not contest the refund sanctioning order and they had also claimed interest after a long lapse of time. The findings of the Adjudicating Authority had traversed beyond the scope of notice issued to them. The Appellate Authority had also traversed beyond the appeal recorded the findings that the rele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding recorded by the appellate authority in para 11 of the impugned holding their claim for interest as barred by limitation by placing reliance on relevant date appearing in Sec. 11B of the Central Excise Act is not sustainable. The above ratio is relied upon without prejudice to their contention that the relevant date relied upon by the appellate authority has no application since the Hon'ble High Court in its order only declared the circular of the board as ultravires and did not order for any consequential refund to warrant its application. In any case such a proposition could be pressed into service only when a higher appellate forum or court orders for the sanction of the refund on finding any demand for duty made in any order not legally sustainable other than a case of refund in which case the order of the higher appellate authority or court would be deemed as a sanction of the refund in terms of Sec. 11 B [2] of the Act warranting the application of Sec. 11 B [3] ibid 2 2026 [4] TMI 2022 CESTAT CHENNAI and the other judgments relied in the said decision Para 7, 12 and 15 holding that in cases involving payment and collection of the duty without the authority of la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed at para 14] of the impugned order 6 2017 [52] STR 131 [Del] Interest on for delayed refund is mandatorily payable from the date of filing of the claim and the initial non-claiming of the interest or non-mention of the same in the order passed irrelevant [Para 2] 7 2017 [51 STR 214 [SC] Refund claim filed with defect if any need to be returned with deficiency memo as per Board's circular dated 30.05.1995 [para 16] since electronic claims were accepted and no objection or deficiency raised the same is to be taken as the relevant date of filing the claim and it cannot also be overcome by asking the assessee to file manual claim as has been done in the appellant's case 8 2009 [235] ELT 788 [Bom] Unless a finding is recorded that application that was filed cannot be termed as an application made under Sec. 11B of the Central Excise Act liability to pay interest after expiry of period of three months from the date of receipt of the application cannot be denied [paras 8-9] 9 2018 [362] ELT 920 [Tri. -Mum] Date of filing of refund claims through electronic mode as per Board's circular to be reckoned as the date of filing and not the date of filing of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... passed the final Order dated 29/04/2014 in favour of the Appellant, the cause of action kicked in. Consequently, the Appellant filed a proper refund claim dated 31/01/2015 in FormR with all the relevant documents and these claims were received by the Department on 06/02/2015. After receipt of these claims the refunds were sanctioned within a period of three months. e) The Appellant did not dispute the refund Orders passed by the refund sanctioning authority till 17/06/2019 i.e. until a lapse of four years. Neither did they file any appeal against the original refund sanctioned orders. Any appeal against these refund orders should have been made before the first appellate authority within a period of sixty days from the date of communication of the order, whereas the Appellant had not filed an appeal even after a lapse of four years. Any grievance against the refund order thus gets hit by the limitation of time even as per the Limitation Act, which prescribes a maximum of only three years. Thus, agitating an order after a lapse of many years, without having/agitating it at the appropriate time is flawed and time barred. f) Further, on merits, the relevant date for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise Act, 1944, the refund arose only after the Final Order of the Hon'ble High Court was passed. The refunds became eligible for consideration only after all the necessary documents were submitted by the Appellant and the refunds having been sanctioned well within three months of such filing of the complete refund application, the question of interest in these cases do not arise. In view of the foregoing facts and discussions and placing reliance on the decision cited supra, the present appeals of the Appellant contain no merit and thus require to be set aside. 10. The Ld. A.R. placed reliance on the decision in V. Peter Fairdeal Agencies v. Commissioner of CGST & CE, Thiruvananthapuram, 2023 (68) GSTL 44 (Kerala). 11. We have heard the rival submissions and carefully perused the materials available on record. 12. The issues that arises for our determination are: (i) Whether the finding of the learned Commissioner (Appeals), rejecting the appellant's claim for interest on the sanctioned refund on the ground of delay and laches with reference to the period of limitation prescribed under the Limitation Act, 1963, is sustainable in law; (ii) Whether ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Kar.), where it was held that the statutory right to interest can be enforced without the necessity of an appeal against the order sanctioning the refund. It follows that the appellant's letter dated 17.06.2019 was not in the nature of an original claim instituting a fresh cause of action exigible to a period of limitation; it was no more than a reminder of an obligation that arose, automatically and by operation of law. We may add that a material part of the four years the learned Commissioner (Appeals) treated as inordinate delay was consumed by the Department's own appeal against the very refund orders dated 05.05.2015, acknowledged in the impugned order as Appeal No.14 to 17/2015(d)(TVL), which was dismissed only on 30.05.2016 following the Board's withdrawal of Circular No.890/10/2009-CX. That the Circular stood withdrawn by way of issuance of Circular No.1007/14/2015-CX dated 12.10.2015 is noted in the impugned order also. The appellant can scarcely be faulted for not having pressed an ancillary claim for interest on a principal sum that the Department itself was, until 30.05.2016, still seeking to have set aside in its entirety. The period of three years under th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the finding of the Original Authority, recorded in its common order dated 20.09.2019, that the appellant had remitted duty and filed its electronic claims contrary to the interim order of the Hon'ble High Court, and had done so "at their own peril", the High Court not having asked for any such payment. Thus, we turn to the second issue. 15. On a close examination, we find that the record does not bear out the premise that the Department itself precipitated this departure by the letter dated 18.12.2010 as sought to be portrayed by the appellant. The interim order dated 26.10.2009 restrained the Department from demanding duty upon the appellant executing a B-2 bond with surety or security, and it is the appellant's own grounds of appeal, unrebutted on this point, that record the true reason for the subsequent change of course, namely that the appellant found it increasingly difficult to arrange solvent surety for the substantial and escalating amounts that would have been required under the bond route. Thus the records reflect that it was this practical difficulty, rather than any fresh demand by the Department, that led it to opt, by its letter dated 09.12.2010, to regis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s well settled that a party is not permitted to derive an advantage, years later, from its own default in never having objected when objection, if warranted, was its own to make. The Latin maxim null us commodum capere protest de injuria sua propria, meaning, no man can take advantage of his own wrong, squarely applies. The decisions in Union of India v. Major General Madan Lal Yadav, (1996) 3 SCR 785: 1996 INSC 425, and M. Meenakshi v. Metadin Agarwal, (2006) SUPP. 5 SCR 505: 2006 INSC 562 refer in this regard. This Tribunal, being the last fact-finding forum, is not confined to the specific route by which the first appellate authority disposed of the appeals, and it is our duty to examine the true character of the payments as the record discloses it. We must take the facts as they emerge from the record. We accordingly hold that the payments made by the appellant from 2011, and the electronic claims filed contemporaneously with each such payment, were payments made under protest, with the knowledge of the Department and without objection from it, and were not voluntary payments made at the appellant's peril; the contrary finding recorded at paragraph 12 of the Original Author....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... protest had not yet been decided. The Hon'ble Supreme Court in Ranbaxy Laboratories supra has already held, in terms, that the pendency of appellate or other proceedings does not postpone the date from which interest under Section 11BB runs; the Explanation to the Section exists only to deem an appellate or court order as one made under Section 11B(2), and "has nothing to do with the postponement of the date from which interest becomes payable". We see no principled basis to treat the pendency of a writ petition challenging the very Circular that occasioned the protest payment any differently from the pendency of an appeal. We do not find it necessary to test this conclusion against the decisions the appellant has cited on this issue, since the second proviso to Section 11B(1) and Ranbaxy Laboratories (supra) themselves furnish a sufficient and more direct basis for it. Further, we note that from the principle laid down in Hamdard (Waqf) Laboratories supra, Swaraj Mazda Ltd. supra and ABS Professional Services India Pvt. Ltd. supra, it follows that an electronic claim received without demur, and without a deficiency memo of the kind the Board's Circular dated 30.05.1995 co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d demand for a fresh physical filing of a claim already before the Department in substance, albeit in the electronic mode, cannot then form a reason to treat only the later filing as the sole complete application, particularly where, as here, the sum ultimately sanctioned matched precisely the amounts the appellant had claimed electronically from the outset. This would be in consonance with the approach of the Hon'ble Delhi High Court in S.R. Polyvinyl Ltd. v. Commissioner of Cus., ICD, TKD, 2020 (371) E.L.T. 283 (Del.), where interest was directed to run from the date of the original refund application notwithstanding the Department's insistence, years later, on documents that in fact formed part of its own record and had never been called for when the claim was first filed. 21. We must also directly meet the ground pressed by the learned Authorised Representative in terms, namely, that Clause (ec) of the Explanation (B) to Section 11B fixes the "relevant date" as the date of the Hon'ble High Court's order dated 29.04.2014, since the duty became refundable, on the Revenue's own submission, "as a consequence" of that order, and that the physical claim filed on 31.01.2015....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use (ec) is to be construed only to the extent of expanding the limitation permitted for purpose of staking a claim for refund and that the said provisions serve no other purpose. It was further held that Clause (ec) is with reference to the 'relevant date' only, in the context of the limitation for making of such an application for filing of a refund claim, and does not have any impact with reference to the date of proclamation of the admissibility of the refund claim. We respectfully agree with, and adopt, this reasoning. We may add that the Hon'ble Kerala High Court in S.I. Property Kerala Pvt. Ltd. v. Commissioner of C. Ex., Cus. & S.T., Thiruvananthapuram, 2019 (29) G.S.T.L. 632 (Ker.), while holding that the judgment, decree, order or direction referred to in Clause (ec) must be one rendered in a case filed or proceedings initiated by the very assessee claiming its benefit, confirms only that Clause (ec) is calibrated to preserving an assessee's own right to an extended limitation for filing a claim. It is pertinent to note that in the instant case such a right the appellant had, was not required to be invoked in any event, given that its claims stood filed contemporaneously ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., namely whether the duty was leviable at all, not a question of arithmetic, and it is for that reason that the "ascertained sum" principle applied in JSW Steel Ltd. does not, in our view, extend to the facts before us. That there was no protest registered in JSW is also a distinguishing factor. We have once again examined the decision in Indian Farmers Fertiliser Co-Op. Ltd. supra. It answers a single, narrow question, namely whether a refund claim under Section 27 of the Customs Act, 1962 is barred by limitation where it was filed before the assessment was rectified under Section 154 pursuant to a direction of the Hon'ble Supreme Court and it answers that question in the negative, holding that till the assessment order is rectified, the question of refund would not arise at all, so that limitation could not run from the date of the original, erroneous payment. The decision says nothing whatsoever about interest. The postponement of the interest clock in JSW Steel Ltd. supra was, in other words, this Bench's own further reasoning addressed to the peculiar quantification gap on those facts. This reinforces our view that it is confined to cases presenting that gap and thus J....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aneously with each protest payment made from 2012 onward, answer the description of "application under sub-section (1) of Section 11B" of the Act for the purpose of computing interest under Section 11BB, and that the claim in Form 'R' filed on 31.01.2015 was, in this respect, no more than the physical reiteration of claims already validly on file. The decision of the Hon'ble Kerala High Court in V. Peter Fairdeal Agencies v. Commissioner of CGST and Central Excise, Thiruvananthapuram, 2023 (68) G.S.T.L. 44 (Ker.), relied upon by the learned Authorised Representative, does not persuade us otherwise. That decision concerned a choice between the date of actual tax payment and the date of a subsequent appellate declaration of non-liability. It is not a case where a protest claim had been filed contemporaneously with the payment at all, and it further does not address the distinct question, presented here, of which of two competing claim applications governs, and is therefore distinguishable in the facts obtaining in that case. 25. Given our findings above, in order to compute the precise amount of interest payable taking into account the precise date on which the electro....