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Tien Yuan India Pvt Ltd Versus The Union of India, through the Secretary & Others

2016 (5) TMI 9 - BOMBAY HIGH COURT

Seeking direction for grant of interest - Deposited voluntarily till the date of actual payment under Section 11B of the Central Excise Act, 1944 - Appellant submitted that interest is due and payable from the date of the application seeking refund till the date of payment. Also 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 applicat .....

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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 the present case, the application made for refund under Section 11B is dated 4th October 2006. The amount of refund as directed in terms of the order .....

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akash Shah For the Respondent : Mr. Y S Bhate i/b Mr. Kirankumar J Phakade ORDER P. C. 1. Rule. Respondents waive service. By consent Rule made returnable forthwith. 2. This Petition under Article 226 of the Constitution of India is directed against the Respondents who are Authorities under the Central Excise Act, 1944. 3. On the basis of a legal right and conferred by Section 11BB of the Central Excise Act, 1944, the Petitioners are seeking a Writ of Mandamus or any other appropriate Writ, Orde .....

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ld 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, .....

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ny duty ordered to be refunded under subsection (2) of section 11-B 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 per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Central Government, by notification in the Official Gazzette on such duty from the date immediately after the expiry of three months .....

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te, till the date of refund of 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& .....

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to be paid on such duty from the date immediately after the expiry of the period of three months from the date of receipt of such application till the date of refund of such duty. Mr. Shah, therefore, submits that in the instant case the refund came to be granted admittedly under Section 11B of the Act. If there was delay in refund, then, interest on delayed refund is the mandate which follows from Section 11BB of the Act. He would, therefore, submit that the interest be granted as claimed. 8. O .....

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the Advocates appearing for both the sides, perused the Petition and all annexures thereto. It is not necessary to go into the recovery or the proceedings pursuant to which the Petitioner brought in the sum of ₹ 2,00,00,000/-. The Affidavit in Reply goes on 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 Commiss .....

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e Tribunal then decided the matter. It may be that the Tribunal decided in favour of the Assessee and against the Revenue and the Revenue has brought an Appeal against the Tribunal's order which is admitted and pending in this Court. Nonetheless, the order of the Tribunal has not been stayed. It is in these circumstances that the Assistant Commissioner proceeded to consider the claim for refund. At page 149 of the paper-book, the Assistant Commissioner worked out the amount. He, therefore, a .....

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n 11B which enables claiming of refund. Sub-section (2) of that provision sets out as to what is to be done after receipt of the application of refund. If, on receipt of any such application, the Authority is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the Applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund. In the present case, however, the credit to the Fund has not t .....

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st 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 from Section 11BB (1) of the Act in the present case. 12. We are unable to agree with Mr. Bhate that the amount was not refunded pursuant to any claim or application for refund or that the voluntary payment by the Petitioner of duty amount was a .....

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