TMI Blog2019 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... nly the rate of interest that has to be specified by the Central Government by a Notification issued under section 11BB of the Act - the appellant was entitled for payment of interest at the rate specified in the Notification dated 12 September, 2003. It is not possible to sustain the view taken by the Commissioner (Appeals) - Appellants are held entitled to payment of interest at the rate specified in the notification from the first day of the month succeeding the month for which such refund was determined till the date of refund - Appeal allowed. - Excise Appeal No.1419 of 2012, 1420 of 2012, 1421 of 2012-Division Bench - FINAL ORDER NOS. - 71418-71420/2019 - Dated:- 16-7-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remaining amount. Interest in terms of Rule 7(5) of the Central Excise Rules was, however, not paid. 3. Appeals were filed before the Commissioner (Appeals) against the orders passed by the Adjudicating Authority. The Commissioner (Appeals) partly allowed the appeals holding that there was enough evidence to show that the burden of incidence of duty had not been passed on and therefore, refund was sanctioned subject to verification of the records. However, interest on the delayed payment of refund was denied. It is against this part of the order of Commissioner (Appeals) denying interest that these three appeals have been filed. 4. Shri B.L. Narasimhan learned counsel appearing for the appellants submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), there shall be paid an interest on such refund at the rate specified by the Central Government by notification issued under section 11BB of the Act from the first day of the month succeeding the month for which such refund is determined, till the date of refund. 9. A bare perusal of the aforesaid Rule 7(5) indicates that when the assessee is entitled to refund there shall be paid an interest on such refund at the rate specified by the Central Government by notification issued under section 11BB of the Act. 10. The Commissioner (Appeals), while dealing the claim of the appellant for payment on interest, denied it for the reasons mentioned in paragraph 4.3 of the order. This paragraph is reproduced belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11B 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 percent] and not exceeding thirty percent per annum as is for the time being fixed by the Central Government, by Notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. On coherent reading of the provisions of rule 7(5) of the Central Excise Rules, 2002 read with Section 11B 11BB of the Central Excise Act, 1944, I am of the opinion that all the refund of excess duty paid are subjected to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Rule 7 deals with the provisional assessment Rule 7(1) permits an assessee who is unable to determine the value of excisable goods or determine the rate of duty applicable to request the Assistant Commissioner or Deputy Commissioner for payment of duty on provisional basis and an order can be passed by such an officer allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. An order for final assessment is passed under Rule 7(3). It is in this context that Rule 7(5) has to be understood. It provides that where the assessee is entitled to refund consequent to an order for final assessment, there shall be paid an interest on such refund at the rate specified by the Central Government by a Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken finds support from the decision of a Division Bench judgement of the Tribunal in the appellant s own case in M/s LG Electronics India Pvt. Ltd. 15. It is, therefore, not possible to sustain the view taken by the Commissioner (Appeals). Thus, for all the reasons stated above that part of the impugned order that denies payment of interest under Rule 7(5) of the Rules is set aside and the Appellants are held entitled to payment of interest at the rate specified in the notification from the first day of the month succeeding the month for which such refund was determined till the date of refund. This amount shall be paid expeditiously and not later on two months from the date a copy of this order is produced by the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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