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2016 (8) TMI 124 - GAUHATI HIGH COURT

2016 (8) TMI 124 - GAUHATI HIGH COURT - 2016 (340) E.L.T. 310 (Gau.) - Entitlement of writ petitioner to interest under section 11BB of the central excise act 1944 on delayed excise duty refund Held that:- language of Section 11B is very clear and unambiguous. The Section does not distinguish or differentiate between any kind of excise duty refund, whether duty paid in excess or duty paid which are exempted. Review sought for on the ground that two Central Government circulars dated 19-12-20 .....

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aid writ petition was heard alongwith another writ petition being WP(C) No.2325/2012. 3. Question for consideration before the writ Court was the entitlement of the writ petitioner to interest under Section 11BB of the Central Excise Act, 1944 on the delayed excise duty refund by the department to the writ petitioner. 4. Writ petitioner (petitioner, hereinafter) is a company incorporated under the Companies Act, 1956, owning amongst others the Chabua Tea Estate in the district of Dibrugarh, Assa .....

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om commencement of production. 6. Pursuant thereto, Department of Revenue, Ministry of Finance, Government of India issued notification No.33/99-CE dated 08-07-1999 giving concessions in excise duties. The said notification was issued in exercise of power conferred by Sub-section (1) of Section 5A of the Central Excise Act, 1944 readwith Section 3(3) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and Section 3(3) of the Additional Duties of Excise (Textile and Textile .....

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the aforesaid notification dated 08-07-1999, as amended. 8. Assistant Commissioner of Central Excise, Dibrugarh vide order dated 10-05-2005 held that the petitioner was eligible for exemption under notification dated 08-07-1999. Thereafter, the said authority vide order dated 05-08-2005 sanctioned refund of ₹ 77,52,409.00 in favour of the petitioner out of the claimed amount of ₹ 1,10,61,418.00. It was stated that the refund claim for the months of August, 1999, September, 1999, May .....

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006 rejected the appeal and upheld the order dated 05-08-2005. 11. Revenue thereafter preferred second appeal before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (CESTAT). However, CESTAT by order dated 21-06-2011 dismissed the appeal filed by the Revenue. 12. Against order of CESTAT, Revenue filed further appeal before this Court, which was registered as C.Ex. Appeal No.5/2011. This Court by order dated 19-12-2011 dismissed the appeal holding that no substantial question of l .....

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fidavit, it was stated that refund claim of ₹ 33,09,009.00 was taken up for expeditious disposal. Ultimately, by order dated 27-03-2012 passed by the Assistant Commissioner, Dibrugarh, an amount of ₹ 32,05,103.00 was sanctioned for refund to the petitioner. The said amount was paid to the petitioner vide cheque dated 27-03-2012. On the claim of interest, respondents stated that nature of refund envisaged in the notification dated 08-07-1999 is qualitatively different from refund unde .....

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Section 11B is very clear and unambiguous. The Section does not distinguish or differentiate between any kind of excise duty refund, whether duty paid in excess or duty paid which are exempted. Relevant portion of the judgment and order dated 08-11-2012 reads as under :- 25. Before we proceed further, relevant portion of the notification dated 08-07-1999 may be looked into. As has already been noticed earlier, the said notification has been issued amongst others in exercise of the powers confer .....

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er by the 15th day of the next month, (iii) if there is likely to be any delay in the verification, the jurisdictional central excise authority shall refund the amount on provisional basis by the 15th day of the next month to the month under consideration and, thereafter, may adjust the amount of refund by such amount as may be necessary in the subsequent refunds. 26. Thus, it is quite clear the once it is held that a manufacturer is entitled to exemption of excise duty in terms of the notificat .....

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may make an application with relevant documents and evidence for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of six months from the relevant date. Under sub-section (2) of section 11B, if on receipt of any such application, the Assistant Commissioner is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly. 28. Under section 11BB of the Central Excise Act, 1944, if any duty ordere .....

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n 11B and 11BB of the Central Excise Act, 1944, it is apparent that if any refund of excise duty is ordered under section 11B(2), the same has to be refunded within three months from the date of receipt of application under sub- section (1) of that section, failing which interest will have to be paid. Language of section 11B is very clear and unambiguous. It speaks of claiming refund of any (emphasis ours) duty of excise. No exception is provided. It does not distinguish or differentiate between .....

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the case of Ranbaxy Laboratories Limited (supra), Hon'ble Supreme Court while examining the aforesaid two provisions, referred to a circular dated 01-10-2002 issued by the Central Board of Excise and Customs, New Delhi wherein and whereby the Board stressed that the provisions of section 11BB of the Central Excise Act, 1944 are attracted automatically for any refund (emphasis ours) sanctioned beyond a period of three months. Hon'ble Supreme Court has held that liability of the Revenue t .....

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