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Shreyas Trading Company Versus Commissioner of Central Excise, Pune

2017 (12) TMI 323 - CESTAT MUMBAI

Interest on refund - Relevant period - Submission of appellant is that anti-dumping duty cannot be levied during intervening period i.e. between the period of expiry of provisional notification and issuance of definitive levy notification - Held that: - harmonious reading of the provisions contained in Section 11B and Section 11BB demonstrates that an order of refund under Section 11B(2) is pre-requisite and default in carrying out the provision of Section 11B gives rise to interest - it is diff .....

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on and issuance of definitive levy notification. Explaining the history of the case, learned counsel submitted that when the appellant faced adjudication raising duty demand of ₹ 12,56,336/- in terms of order dated 23.7.2005, without seeking appeal remedy before Commissioner (Appeals), was before the Hon ble High Court of Bombay in Writ Petition No.4027 of 2004 agitating that there should be no levy of anti dumping duty. It also made an interm application No. 211 of 2007 in that Writ Petit .....

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ppellant that the deposit having been made in terms of order of Hon ble High Court as aforesaid, it is entitled to interest from the date of deposit. But the Adjudicating Authority below rejected such prayer by order dated 22.3.2016 which was confirmed by Commissioner (Appeals) by order dated 8.12.2016. 3. Being aggrieved by the above order dated 8.12.2016, appellant is before Tribunal praying that it is entitled to interest from the date of deposit aforesaid in terms of order of Hon ble Supreme .....

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ch is reproduced below for convenience of reading:- 11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such .....

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ises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act : Provided further that the limitation of one year shall not apply where any duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is sa .....

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redited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s current account maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification is .....

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such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government, the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribu .....

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ing contained to contrary in any of the judgment of the court, no refund shall be made except meeting the test prescribed by sub-section (2) of Section 11B. 8. Section 11BB of the Central Excise Act, 1944 granting interest on delay refund reads as under:- 11BB. Interest on delayed refunds. - If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, the .....

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nder sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, 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 Commissione .....

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