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COMMISSIONER OF CENTRAL EXCISE, PUNE-I Versus M/s GARWARE WALL ROPES LTD

2015 (10) TMI 1364 - CESTAT MUMBAI

Demand of interest - Whether the respondent-assessee under the facts and circumstances is entitled to interest from the date of enactment of Section 11BB as already allowed or whether the respondent-assessee is entitled to interest from the expiry of 3 months from the date of its application and/or order of this Tribunal dated 25 th of June, 2007 - Held that:- The explanation appearing below proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made .....

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e application for refund, the amount claimed is not so 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 3 months from the date of receipt of the application under sub section 1 of Section 11BB of the Act becomes payable. - board have directed that responsibility should be fixed for not disposing of the refund claims within 3 months from the date of receipt of the application. Thus t .....

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pellant : Shri Ashutosh Nath, Asst Commissioner (AR) For The Respondent : Shri C K Hande, Asstt General Manager Per: Anil Choudhary: The Revenue is in appeal against Order-in-Appeal No. P-I/VSK/58/2009 dated 27.02.2009 passed by the Commissioner of Central Excise (Appeals), Pune-I. 2. The issue involved in this appeal is commencement of the period for the purpose of payment of interest, on delay refund, in terms of Section 11BB of the Central Excise Act. In other words the question is whether th .....

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st from the date of enactment of Section 11BB as already allowed or whether the respondent-assessee is entitled to interest from the expiry of 3 months from the date of its application and/or order of this Tribunal dated 25 th of June, 2007. 3. The learned A.R. states that according to Revenue interest on refund is allowable from the expiry of 3 months of the date of appellate order. The final order of the Tribunal was passed on 25/06/2007, wherein the Tribunal held that the credit of refund amo .....

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into consideration the ruling of the Hon'ble Bom bay High Court in the case of CCE, Pune-III vs. Ballarpur Industries reported at 2006 (229) ELT 498 (Bom.). The relevant para of the Commissioner's order taking notice of the finding of the Bombay High Court is quoted herein for ready reference:- "Perusal of the above provision shows that section 11BB of the Act comes into operation only after an order for refund has been made under section 11B of the Act. It lays down that in case a .....

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of Central Excise or Deputy Commissioner of Central Excise but is made by the Commissioner (Appeals), Appellate Tribunal or by the Court, then for the purpose of this section the order made by the Commissioner (Appeals), Appellate Tribunal or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. Thus, the purpose of introducing explanation was to introduce deeming fiction that for the purpose of sub-section (2) of Section 11B if the order is made not .....

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hs from the date of the receipt of the application for refund if the amount is not refunded within three months from the date of receipt of the application. The learned Counsel appearing for respondent also relied in support of his submission on the judgments of various High Courts. However, in our opinion, the position of law is absolutely clear that the interest is payable under Section 11BB of the Act on expiry of period of three months from the date of receipt of the application and that Exp .....

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attention that similar issue have also been considered by the Hon'ble Supreme Court in the case of Ranbaxy Laboratories Limited vs. Union of India 2011 (273) ELT 3 (S.C.) wherein the question before the Hon'ble High Court was same as in this appeal and the Hon'ble Apex Court after taking notice of the provisions of Section 11B and 11BB of the Act have held that it is manifest from the provisions of Section 11BB of the Act which come into play only after the order for refund has been .....

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introduces a deeming fiction that where the order for refund of duty is not made by the Asst. Commissioner of Central Excise or Dy. Commissioner but by an appellate authority or the Court, then for the purpose of this of the section the order made by such higher appellate authority or by the Court shall be deemed to be on order made under subsection 2 of Section 11B of the Act. It is clear that the explanation under Section 11BB of the Act. Manifestly interest under Section 11 BB of the Act beco .....

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