9911796707
TMI Blog2019 (3) TMI 1750X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellate Tribunal by this impugned order has allowed the respondent's appeal against the common order dated 31-8-2017 by the Commissioner of Central Taxes (Appeals-1) in Appeal Nos. 821 and 822 of 2017. The appellant-Revenue has proposed the following as substantial questions in these appeals : "1. Whether on the facts and in the circumstances of the case CESTAT was correct in merely setting aside the impugned order Commissioner (Appeals) and allowing the appeal without assigning any reasons and recording any finding on the controversy and recorded perverse finding? 2. Whether on the facts and in the circumstances of the case, CESTAT was correct in setting aside the order of the Commissioner (Appeals) and allowing the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the interest under Section 11BB of the Central Excise Act and recorded perverse finding? 5. Whether on the facts and in the circumstances of the case, CESTAT failed to record a finding regarding the quantum of refund the assessee could be eligible in view of the specific dispute on the quantum and the consequential interest on such quantum of refund?" 2. The present appeals arise in the following circumstances : The respondent offered Information Technology Software Services, as defined under the Finance Act, 1994, to its foreign clients under the Service Agreement concluded with them. The respondent furnished FIRCs, along with Export Invoices, to establish that it realized export proceeds in convertible foreign currency. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... polated into Schema for refund of Unutilized Cenvat credit, as such Schema is nothing more than a facilitative mechanism provided to the exporter to convert the unutilized credit lying in its account into cash. The fundamental difference between the Schema for the unutilized Cenvat credit and refund of the excess duty paid or collected, the Commissioner of Central Taxes emphasized, is that in the former the unutilized credit lies in the assessee's account unlike in the case of excess payment of duty that would be with the State Exchequer; as the State Exchequer would have the benefit of excess payment of duty, the provision for payment of interest is provided under Section 11BB of the Customs Act. 4. The respondent being aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the interest on delay in refund is payable under Section 11BB of the Act provided that excess amount is not refunded within three months from the date of receipt of such application under Section 11B(1) of the Act. Under Section 11BB of the Act, the interest on the excess duty paid or collected is payable from the date of receipt of application till the date of refund of such duty at such rate which is not below 5% and not exceeding 30% p.a. as is fixed by the Central Government by Notification in the Official Gazette. However, under Rule 5 of the Cenvat Credit Rules and Notification dated 18-6-2012, a manufacturer or a provider of output service is allowed refund of such unutilized Cenvat credit subject to such safeguards, conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain. 8. The Learned Counsel further contended that the manner of computation of interest is also settled in view of the decision of the Hon'ble Supreme Court in Ranbaxy Laboratories v. Union of India reported in 2011 (273) E.L.T. 3 (S.C.) wherein, the Hon'ble Supreme Court has declared that the liability of the Revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the three months period from the date on which the order of refund is made. There cannot be any quarrel over the quantum of refund in view of the orders of the Assistant Commissioner, Division C, Bengaluru. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red stands reduced to the extent of duty already paid on the inputs. Thus, the duty paid on inputs by the supplier has already been actually received by the exchequer. Therefore, there is a basic fallacy in the argument by the Revenue that refund of unutilized Cenvat credit is different from excess duty paid or collected as contemplated under Section 11B of the Act. As such, the High Court of Gujarat held that when there is delay in sanctioning the refund under Rule 5 of the Cenvat Credit Rules and Notification dated 18-6-2012, the provisions of Section 11BB of the Central Excise Act would be clearly attracted. 10. The High Court of Madras, which was considering allowing interest on the delayed refund of unutilized credit under the Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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