TMI Blog2005 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... claims for Rs. 18,17,67,645/- and Rs. 52,54,06,510/-, since the petitioner was not in a position to utilise the credit of duty paid on inputs on account of the fact that finished goods were exported under bond. In the first round of appeals be fore the Commissioner (Appeals) and then Customs, Excise and Service Tax Appellate Tribunal (CESTAT), against the order of rejection by respondent Nos. 3 and 4, the matter was remanded by CESTAT [2004 (173) E.L.T. 28 (Tribunal)] to Commissioner (Appeals) to factually verify whether the refund of accumulated credit claimed by the petitioner was attributable to the export of goods under bond alone or was relatable to any other exports. 3. In compliance with the directions of CESTAT, the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on seeking stay of the order viz, granting of refund. The said Stay Application came to be rejected on 4-2-2005 [2005 (183) E.L.T. 369 (Tri.-Mumbai)]. The present petition has been filed on 14-6-2005. 5. Heard Ms. Amrita M. Thakore, learned Advocate appearing with Mr. Mihir Joshi, Senior Counsel. Reiterating the aforesaid facts with added emphasis, it was submitted by Ms. Thakore that the entire approach of the respondent authorities was unwarranted on facts and in law. That the refund claims were filed on 31-1-2003 viz., two years prior to moving this Court and as directed by CESTAT in the first round on 10-9-2004 the petitioner has got the facts verified before Commissioner (Appeals). The entitlement to refund has been accepted by Juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merged with the order of CESTAT and in the circum stances, the claim made by the petitioner was premature having been pressed into service within a month of passing of the order by CESTAT. He, therefore, urged that in these circumstances, this Court should not exercise extraordinary jurisdiction and the parties must be left to avail statutory remedies available to each of them under the provisions of the Act. 7. Having heard the matter at length and considering the fact that the issue involved is very limited the matter is taken up for final hearing and disposal. Rule returnable today. Mr. Jitendra Malkan waives service of Rule. 8. It is necessary to take note of the fact that the petition is moved claiming refund on the basis of an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 11B(2) of the Act and the refund is not made within three months form the date of receipt of the application under Section 1 1B(1) of the Act, an assessee would become entitled to interest at the prescribed rates. The specious plea that delay of refund would permit the petitioner to claim interest loses sight of the basic Scheme of the Act. Once the refund is directed to be ordered by the competent authority in proceedings initiated in accordance with law, the subordinate authority is not supposed to hold back the refund for the simple reason that even on commercial basis if moneys, which do not belong to the revenue, are retained, interest becomes payable. The period of three months stipulated under Section 11BB of the Ac5t is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) stands confirmed. It is necessary to note that at no stage the operation of the said order made by Commissioner (Appeals) was stayed by any higher forum including the Tribunal. The order was, therefore, operative all throughout and the petition had been moved on the basis of the said order. 12. Even if the Revenue challenges the order of the Tribunal in accordance with the remedies that may be available to it under law, in the first in- stance, in light of the facts available on record there is no warrant to state that the Revenue will succeed. However, in the event of the Revenue ultimately succeeding in the matter, it is always open to the Revenue to effect recovery with interest in accordance with the statutory scheme under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim should be withheld on the ground that an appeal has been filed against the order giving the relief, unless stay order has been obtained. It would be the responsibility of the concerned Commissioner to obtain stay order expeditiously where the orders passed by Commissioner (Appeals) suffer from serious infirmities and it involves grant of heavy refunds". Hence, the case of the petitioner also stands governed by the aforesaid circular issued by CBEC, Revenue's attempt to obtain stay from CESTAT having failed. 15. In these circumstances, the Revenue having not made out any case for withholding the refund as directed by the Commissioner (Appeals) vide his order dated 5-11-2004, the petitioner is entitled to succeed. Accordingly, respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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