TMI Blog2016 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... d not exceeding thirty per cent per annum as is for the time being fixed by the Central Government by notification in the Official Gazette. Held that:- once the Assistant Commissioner approached the matter in terms of Section 11B of the Act but the amount as directed to be refunded was not refunded within the time provided by the statutory provision, that, this is a fit case to award interest that is to be awarded for delayed refund. If the duty ordered to be refunded under sub-section (2) of Section 11B is not refunded within three months from the date of receipt of the application under subsection (1) of Section 11B of the Act, then, the award of interest must follow as mandated by Section 11BB(1) of the Central Excise Act, 1944. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Advocate appearing on behalf of the Petitioner would submit that the interest is due and payable from the date of the application seeking refund till the date of payment. 5. Mr. Shah would rely upon the order passed by the Assistant Commissioner, Central Excise, Taloja Division, Belapur Commissionerate dated 28th April 2015, which reads thus: i) In view of the above, I sanction an amount of ₹ 1,74,75,648/- (Rs. 2,00,00,000 - ₹ 25,24,352) (Rupees One Crore Seventy Four Lacs Seventy Five Thousand Six Hundred and Forty Eight Only) by way of Refund granted under provisions of Section 11B to M/s. Tien Yuan India Pvt Ltd in respect of the refund claim for ₹ 2,00,00,000/- (Rupees Two Crore only), filed by them. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such duty. Explanation. - Where any order of refund is made by the Commissioner (Appeals). Appellate Tribunal or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11-B, the order passed by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said subsection (2) for the purposes of this section. 7. Mr. Shah's submission is that once there is an order of refund of duty and which is traceable under sub-section (2) of Section 11B, then to the Applicant to whom this amount is not refunded within three months from the date of receipt of the application under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to narrate as to how the payment of duty was an obligation of the Petitioner/Assessee and which was not discharged. The essential facts have not been disputed by the Revenue at all. 10. We find that the findings of the Assistant Commissioner at page 147 of the paper-book refer to a payment of ₹ 2,00,00,000/- stated to be deposited voluntarily by the Petitioner/ Assessee on 7th September 2006 during the investigation process. Why that payment was made and in what circumstances need not detain us. The findings proceed to rely upon the show-cause notice which is styled as show-cause-cum-demand notice. There was an adjudication order styled as Order-in-Original . Upon such an order, the Petitioner approached the Tribunal. The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place, simply because the provisos to this sub-section would be attracted. The proviso says that the credit to the Fund may not take place and instead the amount shall be paid to the Applicant if it is relatable to what is set out in the clauses in the proviso. Once the case was not of a credit to the Fund, but of payment to the Applicant, then in terms of the Section itself and the order made in the present case, it is a refund. If it is a refund and granted accordingly, then the amount must be disbursed within the period specified by law. If it is not so refunded, then the obligation to pay interest must follow. If that is how the judgments of the Hon'ble Supreme Court and of this Court read, then we do not find any reason to deviate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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