TMI Blog2016 (4) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... umer Welfare Fund, the period for which the assessee would be entitled to interest under section 11BB of the Central Excise Act would stand curtailed. It is a settled legal position that insofar as the taxing provision is concerned, the same has to be construed strictly and one has to look merely at what is said in the relevant provisions; there is nothing to be read in; nothing to be implied and there is no room for any intendment. On a plain reading of section 11BB of the Central Excise Act, it is evident that the object behind such provision is to provide for payment of interest to a party commencing from a period after three months from the date of application till the date of actual refund. The reason is not far to see, namely, that a party should not be prejudiced on account of any delay in deciding the application or on the ground that the party might have to challenge the order of refund before any other forum. As regards the transfer of the amount to the Consumer Welfare Fund, the order passed by the Commissioner (Appeals) holding that there was unjust enrichment, was held to be erroneous and has been set aside, under such circumstances, no prejudice ought to be caused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarging service tax liability under the said Act. The petitioner company has been registered as an assessee and is a service provider with the Service Tax Department. The petitioner Company paid excess service tax to the tune of ₹ 42,68,686/- for the advertising services provided by them during April 2003 to November 2004. On 24.01.2005, the petitioner Company filed a refund claim of ₹ 42,68,686/- with the third respondent Assistant Commissioner of Service Tax, Division-1, Ahmedabad. A show cause notice dated 21st March, 2005 came to be issued to the petitioner Company proposing to reject the refund claim on the grounds of time-bar and unjust enrichment. The Assistant Commissioner of Service Tax passed an order in-original dated 31.01.2008 rejecting the entire refund claim. The petitioner Company went in appeal before the Commissioner (Appeals), Ahmedabad. By an order dated 03.06.2008, the Commissioner (Appeals) held that the refund claim to the extent of ₹ 28,94,776/- was not hit by limitation, and therefore, it was maintainable to that extent, but the amount could not be paid to the petitioner Company because the claim was hit by unjust enrichment and accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd under section 11B(2) of the Central Excise Act and hence, no interest was payable for the period after 02.06.2008 because refund was paid to the petitioner Company within three months of the order of the Appellate Tribunal dated 06.11.2009. Pursuant to the above order of the Commissioner (Appeals), the Assistant Commissioner of Central Excise passed the order in-original dated 12.11.2010 and, sanctioned and paid interest of ₹ 5,40,094/- being the interest on refund of ₹ 28,94,776/- for the period from 24.04.2005 to 02.06.2008. Since the Commissioner (Appeals) had not granted interest for the period from 03.06.2008 till the date of actual payment, the petitioner Company went in appeal before the Tribunal claiming interest of ₹ 3,07,423/- and also further interest on interest because the petitioner Company was unnecessarily dragged to litigate for the claim of refund as well as interest on delayed refund. The Tribunal, by the order dated 06.11.2015, dismissed the appeal observing that no interference was required in this case. The Tribunal held that the refund claim made on 24.01.2005 was sanctioned by the Commissioner (appeals) on 03.06.2015 by ordering transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. Reliance was placed upon the decision of the Rajasthan High Court in the case of J. K. Cement Works v. Assistant Commissioner of Central Excise Customs, 2004 (170) ELT 4 (Raj.) wherein, the court held that a close reading of section 11BB, which now governs the question relating to payment of interest on belated payment of interest, makes it clear that relevant date for the purpose of determination of 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. The non-payment of refund to the applicant claimant within three months from the date of such application or in the case governed by proviso to section 11BB, nonpayment within three months from the date of the commencement of section 11BB brings in the starting point of liability to pay interest, notwithstanding the date on which decision has been rendered by the competent authority as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhatt, learned Senior Standing Counsel for the respondents submitted that in the facts of the present case, the refund claim was filed on 24.01.2005 and therefore, the petitioner would be entitled to interest for a period after three months from such date. Accordingly, the Commissioner (Appeals) rightly granted interest on the amount of ₹ 28,94,776/- for the period starting from 24.04.2005 to 02.06.2008, which is in accordance with the statutory provisions contained in section 11BB of the Central Excise Act. It was submitted that the revenue authorities have, within a period of three months from 11.12.2009 i.e. the date of the order passed by the Tribunal, granted refund for the period from 24.04.2005 to 02.06.2008 for the reason that the refund came to be sanctioned on 13.06.2011 and was transferred to the Consumer Welfare Funds. It was submitted that when the amount was already transferred to the Consumer Welfare Fund, the revenue is not liable to pay any other and further amount due for the period subsequent thereto, namely, 03.06.2008 to 10.03.2010. It was submitted that therefore, the amount which was credited to the Consumer Welfare Fund was liable to be transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of actual payment i.e. 10.03.2010 was not paid on the ground that such amount had been transferred to the Consumer Welfare Fund pursuant to the order passed by the Commissioner (appeals). 9. Under section 11BB of the Central Excise Act, there is an obligation upon the respondents to pay the interest at the prescribed rate immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty, which in the present case is from 24.04.2005 to 10.03.2010. The case of the respondent is that with effect from 03.06.2008, the amount had been transferred to the Consumer Welfare Fund and therefore, the liability of the revenue to pay any interest was discharged. In the opinion of this court, such contention cannot be countenanced for the reason that the section 11BB of the Central Excise Act provides for payment of interest after a period of three months from the date of application till the date of actual payment. The statute does not provide for curtailment of the period for which the interest has to be paid on account of any superwinning circumstances, like transfer of the amount to the Consumer Welfare Fund. The learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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