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TMI Blog2015 (2) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The matter travelled to the Tribunal and the Tribunal had directed the appellant to deposit 50% of the amount as pre-deposit and in the Final Order No.482/2005 dated 24.2.2005 had held that appellants are not entitled to CENVAT credit and appeal was rejected. Since the present appellant was in the process of taking over the unit and the company; and Department did not allow transfer of registration and cancellation of registration, the appellant had to make the payment of balance dues with interest even though the period for filing the appeal before the Hon ble High Court of Kerala against the impugned order had not expired. Thereafter, appellant filed an appeal before the Hon ble High Court who in their judgment dated 24.1.2008 held that appellant was eligible for the credit and allowed the appeal. Thereafter the appellant filed a refund claim for Rs. 14,74,012/- paid in cash by them comprising of inadmissible credit of Rs. 6,96,710/- and interest of Rs. 7,77,302/-. As a result of the order of the lower authority and the Commissioner (A), the claim of the appellant for the principal amount paid by them and the interest of more than Rs. 7 lakhs have been held to be admissible. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned AR that in this case it cannot be said that the amount was collected without the authority of law. Assessee may have a grievance that cancellation of registration was used as a tool to collect the money but that does not make the collection illegal. There was an order passed by the Tribunal upholding the stand taken by the Department that CENVAT credit amount is required to be paid back and therefore, it would be unfair and illegal to say that the amount was collected illegally without authority of law. Therefore this decision is also not applicable to the facts of this case. 6. Now I proceed to examine the legal position. Section 11B and Section 11BB of Central Excise Act, 1944 are reproduced below. SECTION 11B. Claim for refund of duty and interest, if any, paid on such duty (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the? Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. SECTION 11BB. Interest on delayed refunds. --- If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below five ..... X X X X Extracts X X X X X X X X Extracts X X X X
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