TMI Blog2004 (3) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... m by the Commissioner under Order-in-Original No. 10/89, dated 8-9-1989 on the ground that they were selling their Scooters Mopeds to M/s. Expo Machinery Ltd., a related person; that they had decided to deposit the said amount of duty and they had also deposited Rs. 11,47,609/- for the subsequent period under protest; that the Appellate Tribunal vide Final Order No. 1382/90, dated 9-10-1989 set aside the Commissioner s Order against which no appeal has been preferred by the Revenue; that the Appellants thereafter filed their claim for refund on 7-12-1998 and 14-12-1998 respectively; that the Asst. Commissioner under order dated 26-10-1999 rejected their refund claim on the ground of unjust enrichment; that the Commissioner (Appeals) under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the date of receipt of application under Section 11B(1) of the Central Excise Act. 3. Countering the arguments Shri Kumar Santosh, learned SDR, submitted that as per provisions of Section 11B of the Central Excise Act any person claiming refund has to make an application which shall be accompanied by such documentary or other evidence as the applicants may furnish to establish that the amount of duty of Excise in relation to which refund is claimed was paid by him and the incidence of such duty had not been passed on by him to any other person; that since the Appellants had not submitted the proof/evidence to this effect, a show cause notice was issued to them on 25-8-99 asking them to submit the proof/evidence; that after consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. on such sale vis-a-vis the price at which they had received the goods and duty amount paid thereon. Such a certificate I find is clearly missing. The learned SDR thus contended that since such certificate was missing refund claim could not be processed properly and it is the responsibility of the person claiming the refund to furnish the required material/evidence. 4. We have considered the submissions of both the sides. Section 11BB of the Central Excise Act clearly provides that if any duty ordered to be refunded under Section 11B to any applicant is not refunded within 3 months from the date of receipt of application, interest on such duty from the date immediately after the expiry of 3 months from the date of receipt of such appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be penalized as the refund has been held to be payable to them under sub-section (2) of Section 11B of the Act. The only delay which can be attributed to the Appellants is in submission of certificates as directed by the Commissioner (Appeals) vide Order-in-Appeal No. 1231/2000, dated 6-11-2000 as the relevant certificates were given by them only in February, 2001 whereas the Order by the Commissioner was passed on 6-11-2000. We, therefore, hold that the Appellants are eligible for the interest from the date of receipt of refund applications till the date of refund of duty from which the period taken by them in submitting certificates directed by the Commissioner (Appeals) will be deducted. The appeal is disposed of in the above ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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