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2016 (9) TMI 787 - ALLAHABAD HIGH COURT

2016 (9) TMI 787 - ALLAHABAD HIGH COURT - 2017 (346) E.L.T. 75 (All.) - Entitlement for interest - refund became due to petitioner after the matter was decided by Tribunal on 14.01.2000 - application submitted by petitioner on 08.03.2000 but for one or other reason, incorrect and illegal orders were passed by Revenue authority and could not defeat in even up to this Court - amount refunded only in 20.01.2006 - Held that:- respondents have retained huge money of petitioner without any authority o .....

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nd is not relevant for the purpose of attracting interest under Section 11BB but what is said that once refund is found admissible, Assessee if has not been refunded the amount within three months from the date of receipt of application under sub Section (1), he shall be paid interest. Meaning that there is no time limit prescribed for taking a decision about refund but that law makes it very clear that amount if not refunded within three months from the date of receipt of application, interest .....

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ri Nishant Mishra and Sri M.P. Devnath, learned counsels for petitioner and perused the record. 2. Question of classification of petitioner's product 'Gulabari' and rate of tax was in dispute between petitioner and Central Excise Department which was finalised by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide judgment dated 14.01.2000, holding that product 'Gulabari' is not classified under Heading 33.03 of the First Schedule to Central Excise Tariff Ac .....

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ted by petitioner in prescribed proforma on 08.03.2000. The said application was rejected by Central Excise Authority and that matter went up to Customs, Excise & Service Tax Appellate Tribunal, New Delhi who allowed appeal of petitioner vide order dated 10.10.2003 and thereafter Assistant Commissioner passed another order dated 20.01.2006 holding that though petitioner was entitled for refund but the same shall not be refunded for the reason that it is hit by clause of unjust enrichment. Th .....

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under Section 11BB of Central Excise Act, 1944 (hereinafter referred to as 'Act 1944'), any duty ordered to be refunded to any applicant, if not refunded within three months from the date of receipt of application, Assessee shall be entitled for interest on such rate not below ten percent and not exceeding thirty percent on the delayed amount. 6. In the present case, refund became due to petitioner after the matter was decided by Tribunal on 14.01.2000 whereupon an application was also s .....

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espondents are trying to deprive petitioner, benefit of interest though respondents themselves were guilty by not refunding amount in due time and also withheld the same without any authority of law. In other words, here is a case, where respondents deprive petitioner of his property in a manner which was not permissible in law. Once it was held by Tribunal, vide judgment and order dated 14.01.2000 that product "Gulabari' was not classifiable under the Heading 33.03 of the First Schedul .....

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aw to retain the amount realised from petitioner on and after the judgment dated 14.01.2000 passed by Tribunal and non refund thereof despite of application filed by petitioner in prescribed form under Section 11BB renders them liable to pay interest on refundable amount. 8. It is well established that no person can take advantage of his own fault. 9. In the present case, we find that respondents have retained huge money of petitioner without any authority of law and for their own fault are pena .....

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hcase Ltd. Vs LG Household and Healthcare Ltd., 2007 (5) SCC 510. 11. There is another aspect of matter, application for refund was filed by petitioner on 08.03.2000. Under Section 11 BB it is provided that if the authority is satisfied that an amount is to be refunded to Assessee but the same has not been refunded within three months from the date of filing of application, Assessee would be entitled for interest. Order passed by Revenue authority under Section 11B(2) for refund is not relevant .....

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2. In our view, even if an order has been passed much later on, for the purpose of interest it will relate back and Assessee would be entitled for interest after three months from the date he has filed application under Section 11B. 13. In Ranbaxy Laboratories Ltd vs Union Of India & others, 2011 (10) SCC 292 construing Section 11BB Court has said "interest under Section 11BB of Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application .....

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