TMI Blog2014 (7) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... covers the refund of Cenvat Credit mentioned in Clause (c) of the Provision to section 11B(c). Therefore, the refund claims filed under Rule 5 of the Cenvat Credit Rules, 2004 have also to be treated as refund claim under section 11B and the Proviso of Section 11B(2) would be applicable to the same. Just because the appellant by the letters addressed to the Jurisdictional Assistant Commissioner had given up their claim for interest on the amount of refund for the period of delay in sanction of the refund claims, they would not be estoppel from challenging the denial of interest and claiming the same when they are entitled for the same under the statutory provisions of Section 11BB. The impugned order is set aside and the Department is directed to pay the interest in terms of the provisions of Section 11BB. - Decided in favour of assessee. - Mr. G. Raghuram and Mr. Rakesh Kumar, JJ. For the Appellant : Sh. Aditya Kumar, Advocate For the Respondent : Sh. Pramod Kumar, Jt. DR JUDGEMENT Per Rakesh Kumar:- Though in respect of these three appeals, only the miscellaneous application for early hearing was listed today, after hearing this matter for some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stipulated period as prescribed in Notification No.5/06-CE(NT) and there is no dispute about the fulfillment of other condition. However, due to reasons known only to the Department, the refund claims were not finalized in time and were kept pending. 1.3 Sometime in the year 2008 the Jurisdictional Central Excise Authority woke up to the pendency of these refund claims and also to the possibility having to pay interest under Section 11BB for the period of delay beyond the period of three months from the date by filing of refund claim. The appellant submitted letters dt. 25.09.08, 17.10.08 and 29.10.08 in respect of refund claims for the amounts of ₹ 1,13,11,877/-, ₹ 1,11,83,381/- ₹ 79,41,125/- respectively mentioning that they understand that the refund claims have been found to be admissible and that since they are interested in getting the amount involved in the refund claim urgently, they will not claim interest which may be due to them on account of delay in sanction of the claims. Each of these three letters accordingly requested the Assistant Commissioner to sanction refund claim at the earliest. Accordingly the Jurisdictional Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BB provides that interest for the period of delay beyond the period of three months from the date of filing of the refund claim would be payable by the Govt. at the notified rates and since in this case the Authorities did not decide the refund claims within the period of three months from the date of filing of refund claims, the appellant are entitled to interest on the refund amount at the notified rates in terms of the Provisions of Section 11BB, that the Apex Court in the case of Union of India Vs. UP Twiga Fiber Glass Ltd., reported in 2000(243) ELT-A27(S.C.) has held that a close reading of Section 11BB, which now governs the question relating to payment of interest on belated payment of refund, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under sub-section (2) of Section 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund, but the relevant date is to be determined with reference to date of application laying claim to refund and non-payment of refund to the applicant within three months from the date of filing of such application brings in the starting point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there was delay of 29 days 10 days in respect of two appeals and the other third appeal had been filed within time. The reason given by the appellant was that there was delay in obtaining legal advice. But this reason has not been found satisfactory by the Commissioner (Appeals). In our view the Commissioner (Appeals)s order holding the two appeals as not maintainable and time barred, is not correct, as the reasons given by the appellant for delay is a valid reason, as they had filed appeals claiming interest for the period of delay against the background of the fact that they had earlier given letters to the Authorities giving up their claim for interest for the period of delay. In view of this, we hold that the impugned order in so far as its rejects two appeals filed after the delay of 29 days and 10 days as time barred, is not correct. 6. Coming to issue on merits, in terms of Section 11BB if any duty ordered to be refunded under sub section(2) of the Section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section(1), there shall be paid to that applicant, interest at rate notified by the Central Government on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transferred to Welfare Fund or to be paid to the applicant needs no interference. 7. In fact the applicability of Section 11BB is not even denied by the Department. The Department, however, seeks to deny the interest on the basis of the letters given by the appellant to the Jurisdictional Assistant Commissioner giving up their claims for interest for the period of delay. This decision of the Commissioner (Appeals) is absolutely incorrect and contrary to the Law laid down by the Apex Court in the case of Dunlop India Ltd. Madras Rubber Factory Vs. Union of India (Supra) wherein in para 40 of the judgment, the Apex Court has held that there is no estoppel in law against an assessee taxation matters. Besides this, we also find that the Apex Court in case of Union of India Vs. Madhumilan Syntex Ltd. reported in 2007(210)E.L.T.-484(S.C.) has held that right conferred under the statute cannot be given up on the basis of concession made by any party to the lis. In our view the ratio of the above judgments of the Apex Court are squarely applicable to the facts of this case. Therefore, just because the appellant by the letters addressed to the Jurisdictional Assistant Commissioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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