TMI Blog2012 (4) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri R. Nagar, A.R.: for the Revenue. Per: M.V. Ravindran: This appeal is directed against Order-in-Appeal No.SA/35/Vapi/2011, dt.27.04.2011. 2. The relevant facts that arise for consideration are that:- 2.1 The appellant had filed two refund claims on the ground that they have exported 34476.141 MT quantities of Copper Cathode and Copper Rods without payment of duty under letter of Undertaking (LUT) in place of bond to various countries and different customers during the period May 2002 to December 2002 and April 2001 to August 2001. They utilized Copper Anode as raw material falling under CSH. 7402 of Central Excise Tariff Act, 1985 for the manufacture of their final product. The assessee bought this raw material from their sister concern M/s Sterilte Industries (I) Ltd., Tuticorin. 2.2 The appellant had claimed that they were not in position to utilize the credit of duty paid on inputs allowed under erstwhile Rule 57 AU of Central Excise Rules,1944 (Rule 3 of the Cenvat Credit Rules, 2002) as they had exported the finished goods under LUT, during the mentioned period. Therefore, they had filed the above refund claims in view of the provisions laid down un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of clearance of finished goods, this aspect needs verification. The Commissioner (Appeals) has not ascertained these facts as to whether the refund of accumulated credit asked by the assessee was actually attributed to thegoods exported under bond alone". In view of this the Hon'ble CESTAT remanded back the matter to the Commissioner (Appeals) with direction to re-determine the facts and thereafter to pass the order as per law. 2.6 After calling for the verification reports form Jurisdictional authorities, the Commissioner (Appeals) vide OIA No. RKS/240-241/VAPI/2004 dated 05.11.2004 directed the Jurisdictional Assistant Commissioner to ascertain the correctness of the figures of Cenvat credit attributable to inputs used in the manufacture of finish goods exported under bond and lying as balance and allow the refund claim under Rule 57 AC(7) of Central Excise Act, 1944. On verification and as per the report of jurisdictional Assistant Commissioner, the amount of refund claim was after ascertaining the amount attributable to inputs used in manufacture of finished goods exported under Bond/LUT was held to be Rs.65,79,35,635/-, while amount lying in balance in CENVAT Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to take all legal contentions in this regard before the Appellate Authority. Further, it was ordered that Appellate Authority will decide the matter on merits and uninfluenced by the observations contained in the impugned judgment of the High Court as also those contained in its judgment dt.12.08.2005 in SCA No.12251/2005. 3. This impugned order is challenged before us in this appeal passed in remand by the first appellate authority. 4. Ld.Counsel would take us through the list of dates and events in this case. It is his submission that the lower authorities have erred in not granting interest as the refund amount for which refund claim was made on 29.09.01 and again on 31.01.03. He would submit that the contention of the lower authorities that the appellant had resubmitted the refund claim is erroneous, inasmuch as the letter dt.8.11.04 was only seeking the amount back from the authorities, after the appeal has been allowed by first appellate authority and attained finality at the level of the Tribunal on 15.09.04. He would rely upon the decision of Hon'ble High Court of Gujarat in the case of Reliance Industries Limited 2010 (259) ELT 356 (Guj), for the proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them on 29.09.01 and 31.01.03. 8. It is undisputed that in this case the appellant had filed the refund claim on the above two dates on the ground that they could not utilize the CENVAT Credit lying in balance in their account. There is no dispute that the said amounts were availed by them as CENVAT Credit correctly. 9. First and foremost, we have to see whether the amount for which the refund has been claimed by the assessee, is eligible for interest or not. It is undisputed in this case that the amount of credit availed by the appellant was in respect of duty paid on the input which were used for the manufacture of the goods which were exported by them during the relevant period. The appellant could not utilize the said credit during the relevant period for discharge of duty liability on the final product cleared for home consumption. It is also seen that the appellant had exported the goods under LUT/bond during the relevant period. We find that the constitution bench of the Apex Court in the case of Central Bank of India (supra), has clearly enunciated what would be the interest and its classes which with respect, we reproduce. 37. Black s Law Dictionbary (7th Edn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er category 'interest' in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it become payable." It is the appeal against this decision of the Punjab High Court which was dismissed by the Supreme Court in Dr Sham Lal Narula case.[AIR 1964 SC 1878 :(1964) 7 SCR 668]. 10. From the above reproduced ratio of the constitution bench of the Apex Court, it is quite clear that the interest is an amount which has to be paid in general term as compensation allowed by law or fixed by the party or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable. In this case, it is undisputed that the amount which has been claimed by the appellant was refundable to the appellant as per law. 11. As regards the contentions raised by the ld.SDR that the refund of CENVAT Credit will not fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by the provisions of Section 11BB of the Act. Rule 57F of the said Rules made provision for the manner of utilisation of inputs and credit allowed in respect of duty paid thereon. Sub-rule (13) of rule 57F made provision for refund of accumulated credit in case where for any reason it was not possible to adjust the same in the manner provided under the said sub-rule. Sub-rule (13) of Rule 57F of the said Rules is more or less in pari materia to the provisions of Rule 5 of the Cenvat Credit Rules, 2002/2004. Thus, the instructions issued by the Central Government under the aforesaid Circular would also be applicable to refunds under rule 5 of the Rules, which instructions are binding on the revenue. The above said ratio has been affirmed by the appellate court in their dismissal order dt.27.7.2011. 12. In view of this, it is settled legal position that the appellant is eligible for claiming interest from the Revenue authorities for delayed sanction of refund claim. 13. This leads us to another question as to what amount should be considered by authorities for calculation of interest to be paid to the assessee. We find in the appeal memorandum that the appellant is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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