TMI Blog2014 (11) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... d 4-8-2011 and therefore upholds the same. Whether interest liability under Section 11BB of Central Excise Act arise after three months of the order passed by Commissioner of Central Excise or after 3 months of the date of filing refund application - Held that:- once the rebate claim is held admissible under Section 11B of the Central Excise Act, 1944, interest liability starts after the expiry of three months of the date of receipt of application for rebate in the Divisional Office in terms of Section 11BB - as per Explanation to Section 11BB, where the refund/rebate claim is allowed consequent to the order of appellate authority or any Court against the order of the Asstt./Dy. Commissioner, Central Excise, the order of the appellate authority/Court shall be deemed as an order passed under sub-section (2) for the purposes of this Section - Following decision of of M/s. Ranbaxy Laboratories Ltd. v. UOI reported on [2011 (10) TMI 16 - Supreme Court of India] - Decided against Revenue. - F. Nos. 198/643-644/2011-RA - Order Nos. 89-90/2014-CX - Dated:- 19-3-2014 - Shri D.P. Singh, Joint Secretary Shri Chuna Ram, ACCE, and V.D. Kulkarni, Superintendent (Review), for the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Original dated 7-3-2011 the Deputy Commissioner, Central Excise Customs, Nanded Division filed appeal with the Commissioner (Appeals), Central Excise Customs, Aurangabad who vide his Order-in-Appeal No. AGS (142) 30/11, dated 4-8-2011 held that the order passed by the Joint Secretary (Revision Application) is operative. It is also observed that the applicant has raised same grounds in this appeal which were raised by them in Writ Petition before Hon ble High Court while filing the appeal against the order dated 24-2-2011. Since the said grounds are sub-judice before the Hon ble High Court, he refrained from giving any findings on them. However, he find that the order dated 24-2-2011 passed by the Joint Secretary, New Delhi is neither stayed nor set aside by any for and therefore it is still operational. Therefore, he upheld the Order-in-Original dated 7-3-2010 and the appeal filed by the Department against Order No. 20/RBT/DC/2010-11, dated 7-3-2011 is rejected. 2.2 Revision Application No. 198/644/2011-RA :- 2.2.1 The assessee submitted a letter dated 5-4-2011 to the Deputy Commissioner, Central Excise and Customs, Nanded Division requesting him to pay the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted. Hence allowing the rebate by considering the violations to be procedural in nature will render the said substantial requirements redundant. (ii) In this case the fact that the goods are not directly exported from the factory of manufacturer is not in dispute. This being one of the conditions of Notification No. 32/2008-C.E. (N.T.) ensures the identity of the goods exported, the violation cannot be considered as procedural as held by the Joint Secretary in the impugned revision order. (iii) The Joint Secretary has observed in Para 4.10 of the order that the goods are actually examined and sealed by the officers of the customs. This is factually incorrect. The endorsement of Customs officers at the port of export on the ARE-1 cannot ipso facto be considered as the examination of the goods. On contrary, the EDI shipping bill No. 7857137, dated 18-11-2009 has clear endorsement by the system that the goods of the shipping bill are not opened for examination. Thus the export goods have not actually been examined by the officers. (iv) In this case while opting for self sealing of the goods the assessee ought to have followed the procedure prescribed in the C.B.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f application - Section 11BB of Central Excise Act, 1944. 3.2.3 Assessee has also not filed the refund claim in prescribed format i.e. R form as prescribed under the provisions of Section 11B of Central Excise Act, 1944 for claiming of refund of interest which is a statutory requirement for claimant refund. 3.2.4 As per explanation to Section 11BB of Central Excise Act, 1944, it is imperative that where any order of refund made by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or any Court against an order of Assistant/Deputy Commissioner, Central Excise and Customs under sub-section (2) of Section 11B, the order assed by the Commissioner (Appeals), Appellate Tribunal or as the case may be by the Court shall be deemed to be an order passed under said sub-section (2) for the purpose. As the case is covered under the said explanation and accordingly rebate/refund of duty has been originally sanctioned/granted to the assess by the competent authority i.e. Deputy Commissioner of Central Excise and Customs, Nanded Division within 3 months from the date of receipt of GOI order and as such there is no delay in sanction or grant of rebate by the competent aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court. As per available record said order is neither stayed or set aside by Hon ble High Court. In such a situation there is no infirmity in the sanction of rebate claims as upheld by Commissioner (Appeals). The revision application filed in second round is thus not maintainable in the eyes of law. Moreover this authority has become functus officio after passing the order and no pleadings against said order can be entertained. As such Commissioner (Appeals) has rightly rejected the appeal of department. Government do not find any infirmity in the said Order-in-Appeal No. 142/2011, dated 4-8-2011 and therefore upholds the same. 9. Government observes that in the second case, the issue involved is whether interest liability under Section 11BB of Central Excise Act arise after three months of the order passed by Commissioner of Central Excise or after 3 months of the date of filing refund application. In this regard, Government observes that once the rebate claim is held admissible under Section 11B of the Central Excise Act, 1944, interest liability starts after the expiry of three months of the date of receipt of application for rebate in the Divisional Office in terms of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dear that the Explanation has nothing to do with the postponement of the 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 sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
