TMI Blog2016 (11) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... Anna Sugar Mills, (in short M/s. AASM) Kurungulam, Tanjavur, are the manufacturers of Sugar and molasses falling under chapter 17.01 and 17.03 respectively of Central Excise Tariff Act, 1985. During the month of July, 1995, the appellant assessee requested permission for storage of molasses in the open 'Kat-cha pits' stating that the capacity of steel tanks have surpassed its storage capacity, Permission under Rule 173 (4) of Central Excise Rules, 1944, was accorded to store duty paid molasses Service Tax in the open katcha pits within the factory premises vide office order C.No. IV/10/82/95-Cx.POP dated 28/07/95. It was also advised vide the same order under reference that the Valuation Rules in force should be followed for arriving at the assessable value of the materials for payment of duty. The appellant assessee intimated that they would be paying duty under protest. Subsequently, M/s. AASM intimated the Asstt. Commissioner of Central Excise that a portion of duty paid molasses stored in katcha pits has been sold at a price less than the value adopted at the time of payment of duty and accordingly requested for taking credit of ₹ 4,67/259/-. A show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Central Excise. Therefore I reject the first ground taken by the respondents. 7. In so far as the second ground is concerned, section Il-B (1) of the Central Excise Act, 1994 entitles a person to make a claim before the expiry of one year from the relevant date . The second proviso the sub section (1) makes it clear that the limitation of one year will not apply where the duty and interest on the duty had been paid under protest. The orders of the original and appellate authorities as well as the Tribunal disclose the fact that the petitioner paid the duty under protest. However, it is the case of the respondents that such protest was not in accordance with the procedure prescribed under Rule 233-B. But in Indian Pistons Limited Vs. Collector of Central Excise {1990 (46) E.L.T,3}, the Supreme Court rejected the very same contention on the part of the Department. 8. Moreover, the words relevant date are defined in Explanation (B) under Section II-B Sub-clause (eb) under Explanation (B) defines a relevant date to mean the date of adjustment of duty after final assessment in case where the duty on excise is paid provisionally under the Act. Therefore the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the (ACCE or DCCE) under Sub-section (2) of Section 11B, 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 sub-section (2) for the purposes of this Section. In the present case, refund was sanctioned based on the order passed by the Hon'ble High Court of Madras allowing Writ Petition Nos. 6366 6367/2003. By virtue of the explanation to first proviso to Section 11 BB of the Central Excise Act, 1944, the order passed by the Hon'ble High Court of Madras is to be reckoned as the order passed under Sub-section (2) of Section 11 B, for the purpose of payment of interest. Based on the above order, refund claim was filed on 23.12.2009. The question of payment of interest will arise only in the case of sanction of refund beyond three months from 23.12.2009. Refund was sanctioned on 22.03.2010 well within the time frame of three months from the date of receipt of the appellant's refund application based on the above order passed by the Hon'ble High Court of Madras. 0.4.2 In view of the above, the appellants are not eligible for the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim. This order was agitated before various appellate forums over the years till the Hon'ble High court vide order dated 14.09.2009 allowed their writ petition and directed the Department to refund the amount within three months from the date of receipt of copy of order of the High Court. (ii) M/s. Arignar Anna Sugar Mills in terms of the provisions of Section 11A(I) read with Explanation (B) (ec) to the said section filed the refund claim along with a copy of High Court order vide their letter dated 15.12.2009 which was received in the office of the refund sanctioning authority on 23.12.2009. The refund was sanctioned on 22.03.2010 within three months from 23.12.2009, the date of receipt of refund claim and copy of the High Court order. (iii) In the light of the above referred statutory provisions, it is felt that the appellant is not eligible for the interest on the refund amount sanctioned, in this case as refund has been sanctioned on 22.03.2010 well within the time frame of three months from the date of receipt of the appellant's refund application based on the order passed by the Hon'ble High Court of Madras and the present appeal before CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. A plain reading of the above makes it clear that the appellants are entitled for the claim of interest over delayed sanction of the refund. In view of the foregoing, the appeal filed by the appellant is allowed with consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
