TMI Blog2013 (7) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... or refund is made. Similar view was expressed in the case JK Cement Works Vs. Asstt. Commissioner of Central Excise Customs reported in [2004 (2) TMI 78 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR]. In the present case , liability to pay interest on delayed refunds starts on expiry of three months from the date application for refund is filed or in cases covered by the proviso to sec.11BB, on expiry of three months from the date Finance Bill, 1995 received the assent of the President and not from the date of passing of actual order for refund under section 11B(2) of the Act - In the instant case, the application for refund was filed on 5.8.1991 and therefore it is a case covered by first proviso to Section 11BB of the Act. Consequently, the petitioner will be entitled to interest after three months from the date the Finance Bill, 1995 received the assent of the President being 26.5.1995. Thus interest is payable to the petitioner from 26.8.1995 till the date of refund Decided in favor of Assessee. - Hon'ble Prakash Krishna And Hon'ble Manoj Kumar Gupta,JJ. For the Petitioner : Rahul Agrawal For the Respondent : A. S. G. I. ,R. C. Shukla., S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the case. The appellant assessee should not suffer on account of such attitude of the lower authorities. The impugned order of the adjudicating authority being devoid of merits, as discussed supra is accordingly set aside. The appeal is accordingly allowed with consequential relief to the appellants, if any, as discussed supra. . The aforesaid order of Commissioner (Appeals) dated 14.12.2009 attained finality and in pursuance thereof a sum of Rs. 10,69,322.95/- was sanctioned and refunded to the petitioner by a cheque dated 5.8.2010. Since no interest was paid to the petitioner on the said amount, the petitioner by application dated 11.11.2010 represented before the Assistant Commissioner (Central Excise), Ghaziabad for payment of interest for the period 1.4.1985 to 30.6.2010. When no action was taken on the said application, the petitioner has approached this Court by way of the present writ petition for a direction to the respondent-authority to calculate and pay interest to the petitioner for the aforesaid period as per provisions of section 11BB of the Act. 3. The Revenue has filed a counter affidavit in which several objections have been taken rebutting the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be relegated to the same and the writ petition cannot be entertained and should be dismissed. Elaborating his submission, Sri Shukla contended that the order for refund was sanctioned by the Dy. Commissioner (Cental Excise), Ghaziabad by order dated 7.6.2010 and by a corrigendum dated 5.8.2010. He submits that by the said order, the amount of Rs. 10,69,322.95/- was sanctioned and refunded to the petitioner and it impliedly means that interest on the said amount has been refused and therefore the petitioner should have challenged the said order by filing an appeal under section 35(1) of the Act. He further submits that because of non filing of appeal by the petitioner, the aforesaid orders have attained finality and therefore, the writ petition should be dismissed. 7. Refuting the said argument, counsel for the petitioner vehemently urged that the application of the petitioner for refund of excise duty filed under section11B(1) was allowed by an order passed in appeal by the Commissioner (Appeals) on 14.12.2009. He submits that in view of Explanation to section 11BB, the aforesaid order amounts to an order of refund passed under section 11B(2) of the Act. Thereafter, it was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be statutorily paid to the petitioner is a ministerial act and under garb thereof no fresh adjudication is possible nor is warranted. In such circumstances, we are of the considered opinion that the order dated 7.6.2010 and as amended by corrigendum dated 5.8.2010 enclosing a cheque for the principle amount towards refund of excuse duty to the petitioner is not an order of adjudication against which any appeal was required to be filed or was maintainable. The petitioner after noticing that only the principle amount has been refunded, rightly made grievance regarding non-payment of interest before the same authority by filing an application dated 11.11.2010 and when even thereafter interest was not paid, it rightly approached this court. 9. Admittedly, after order for refund attained finality, the principal amount was paid to the petitioner. Only legal question regarding liability of the revenue to pay interest is res integra. It has been repeatedly held by the apex court that relegating a person to avail alternative remedy is a self imposed restriction and not a rule of law. In the facts of the instant case, we are satisfied that relegating the petitioner to any other foru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty of excise as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to----- (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's current account maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. 11. Section 11BB was inserted with effect from 26.5.1995 by section 75 of the Finance Act, 1995 with avowed object of compensating those assesse's to whom refund is not made within reasonable time. Under the said provision, the liability to pay interest starts after expiry of three months from the date of receipt of application under sub section 1 of section 11B in cases where refund is not made within three months. The proviso stipulates that in respect of application made before the date on which the Finance Bill, 1995 received the assent of the President which is 26.5.1995, the period of three months shall be reckoned from such date. Thus the liability to pay interest on delayed refunds in cases covered by sec.11BB is now a statutory liability and which cannot be given a go by on any account whatsoever. It is also evident from the language of section 11BB that the liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of three months from the date of application. Any contrary interpretation will result in violence to the language employed under section 11BB and will defeat the object with which Sec.11BB was inserted by Finance Act 1995 and will amount to extending premium for inefficiency and delay in processing the claim for refund. 15. In fact, the aforesaid view taken by us also find support from a Division Bench decision of this Court in the case of UP Twiga Fiber Glass Ltd Vs. Union of India, 2008 (229) ELT 2005(All). In the said case, the assessee become entitled for refund of excuse duty under three different orders dated 29.5.1992, 21.9.1999 and 14.5.1992. He filed three separate applications for refund dated 6.11.1992, 18.12.1992 and 26.2.1991. Pursuant to these applications, refund was made on 14.11.2005. The assessee filed writ petition laying claim for interest on the late payments. This Court upheld the plea of interest from 26.8.1995, it being case under the first proviso to section 11BB. It was held that liability to pay interest is not dependent on orders passed under section 11B(2) but is referable to the period contemplated under section 11BB of the Act i.e. three months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the 11 date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to construe, execute and apply the same enactment . 21. In view of the aforesaid discussion, we have no any hesitation in holding the liability to pay interest on delayed refunds starts on expiry of three months from the date application for refund is filed or in cases covered by the proviso to sec.11BB, on expiry of three months from the date Finance Bill, 1995 received the assent of the President and not from the date of passing of actual order for refund under section 11B(2) of the Act. 22. In the instant case, the application for refund was filed on 5.8.1991 and therefore it is a case covered by first proviso to Section 11BB of the Act. Consequently, the petitioner will be entitled to interest after three months from the date the Finance Bill, 1995 received the assent of the President being 26.5.1995. Thus interest is payable to the petitioner from 26.8.1995 till the date of refund. 23. Before parting, it may be pointed out that although in the writ petition relief has been claimed for payment of interest from 5.11.1991 i.e. after three months of filing of the application for refund but Sri Rahul Agarwal, counsel for the petitioner during course of argument has stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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