TMI Blog2017 (12) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant become entitled to refund immediately after the said demand was set aside by Commissioner(Appeals) - refund allowed - appeal allowed - decided in favor of appellant. - E/275, 276/07 - A/91159-91160/2017 - Dated:- 30-11-2017 - Mr. Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Manasi Patil Advocate for the Appellants Shri. Ajay Kumar, Addl. Commissioner(A.R.) for the Respondent ORDER Per: Raju These two appeals have been filed by Indian Oil Corporation Ltd against the denial of interest on the refund granted to them. 2. Ld. Counsel for the appellant placed as a list of facts. Dates Nature of Events Feb.1997 to Oct. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals), IOCL filed refund for pre-deposit of duty of ₹ 2,92,57,767/- 28.06.2001 [P/80] DCCE rejected the refund claim under Section 11B of CEA 15.01.2002 [P/85] Commissioner (Appeals) upheld Order dated 28.06.2001 rejecting refund claim 08.04.2005 [P/91] In appeal (No.E/1332/02), CESTAT allowed the appeal with a direction that the pre-deposit of ₹ 2,92,57,767/- has to be refunded without any further delay 06.10.2005 In remand proceedings pursuant to order dated 19-5-2000 ACCE, vide Order-in-Original, confirmed demand of ₹ 2,66,38,177/- and appropriated the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of ₹ 2,92,57,767/- was granted on 23.3.2006, which is within the stipulated period of three months from the Order-in-Appeal dated 8.2.2006 passed by Commissioner (A) 27.02.2006 19.04.2006 Without issuing any SCN or ac cording any Personal Hearing, ACCE rejected the claim for interest, by letters dated 27.2.2006 and 19.4.2006. May June 2006 Two separate appeals were filed before the Commissioner (Appeals), against said letters dated 27.2.2006 and 19.04.2006 05.12.2006 [P/29] Both the appeals were rejected by Commissioner (Appeals), through impugned common Order-in-Appeal dated 5.12.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r else there is nothing in the Act which would enable the Assessee to claim refund. If refund is claimed in accordance with the Central Excise Act, 1944, then, all provisions by which such refund applications can be considered and granted are automatically applicable. If such applications or requests cannot be granted unless they are made within the specified period, then, the view taken by the Assistant Commissioner is in accordance with law. The Commissioner (Appeals) has overlooked and brushed aside the statutory provisions, therefore, the application for refund could not have been granted by him in this manner. His view has been rightly set aside and the patent error has been corrected by the Tribunal. Such view of the Tribunal and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal, and, (ii) the refunds so claimed are covered under the provisions of Section 11B of the Act and are governed by the parameters applicable to the claim of refund of duty as the amount is deposited under Section 35F of the Central Excise Act, 1944. The Hon ble Supreme Court vide its order dated 26-11-2001 dismissed the appeal. Even though the Apex Court did not spell out the reasons for dismissal, it can well be construed in the light its earlier judgment in the case of Suvidhe Ltd. and Mahavir Aluminium that the law relating to refund of pre-deposit has become final. 3. In order to attain uniformity and to regulate such refunds it is clarified that refund applications under Section 11B(1) of the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund. In the ordinary course in terms of board circular refund should have been sanctioned without requirement of the appellant making the claim. Ld. A.R. has argued that the said demand of duty was subsequently confirmed and said pre-deposit was appropriated against the said confirmation of duty. We find that the said argument does not hold much water. The fact is that in terms of CBEC clarification cited above, which is reproduction of the view of Hon ble High court and Hon ble Supreme Court, appellant become entitled to refund immediately after the said demand was set aside by Commissioner(Appeals). Subsequent development in the case regarding confirmation of duty and adjustment of said pre-deposit against the appellant are of no conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
