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TMI Blog2021 (8) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dated 7.7.2008 allowed the refund claim to the extent of Rs. 3,85,681/- and rejected the balance refund claim. Aggrieved by the said Order-in-Original, appellant preferred an appeal before the Commissioner of Central Excise (Appeals) and the Commissioner (A) vide order dated 22.12.2008 partially allowed the refund claims towards the credit availed on the 'Security Services' and 'Clearing and Forwarding charges' and rejected the balance claim. Aggrieved by the Order-in-Appeal, appellant filed appeal before CESTAT and CESTAT vide Final Order No.21260/2016 dated 16.7.2014 allowed the appeal and set aside the order rejecting the refund claim. Further, the said order was communicated on 25.11.2016. Thereafter, consequent to the order of CESTAT, appellant submitted a letter dated 21.2.2017 requesting for grant of refund. Thereafter, vide letter dated 16.3.2017 Assistant Commissioner requested for additional set of refund application along with enclosure for processing the refund claim. Thereafter, on 19.3.2019 appellant submitted letter along with a copy of the refund claim dated 7.8.2017 and also documents. Vide order dated 15.7.2019 CESTAT dismissed the appeal filed by the Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) ELT 3 (SC) 4.1 He also submitted that it is clear from conjoint reading of provisions of Section 11B(2) and Section 11BB(2) of the Central Excise Act, 1944 as made applicable to the Service Tax provisions in terms of Section 83 of the Finance Act, 1994 that there is no requirement of making application for refund at every stage of the adjudication / appellate proceedings. He further submitted that order of the Tribunal dated 16.7.2014 has attained finality and there is no power or jurisdiction to the lower authority to re-adjudicate the same matter again. Department has not filed an appeal against the decision of the Tribunal. For this submission, he relied upon the following decisions: * CCE, Chennai-I vs. Manali Petrochemicals Ltd.: 2011 (264) ELT 39 (Mad.) * Waters Inia Pvt. Ltd. vs. Commissioner of Central Excise and Service Tax and Customs: 2018-TIOL-950-CESTAT-BANG. * Hero Motors Ltd. vs. Commissioner of Central Excise, Delhi: 2017 (357) ELT 377 (Tri. - Del.) * Jaya Diagnostic & Research Centre Ltd. vs. Commissioner of Customs, Hyderabad: 2020 (374) ELT 273 (Tri. - Hyd.) * Toyota Kirloskar Motor Ltd. vs. CCE: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of CESTAT but instead of granting the refund, the Assistant Commissioner asked the appellant to file fresh refund application along with documents which was not required at all because it is a settled law that application for refund need not be made at every stage of adjudication process of an original refund claim and there is no express provision in the CENVAT Credit Rules, 2004 for filing of subsequent application and further, the relevant date as per Section 11B(2) of the Central Excise Act, 1944 applies only to the first application of refund claim and this issue has been considered by this Tribunal in the case of BASF India Ltd. vs. CCE, Bangalore: 2021-TIOL-172 wherein on an identical issue, this Tribunal in para 5 and 5.1 has held as under: "5. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant filed the refund claim on 20/03/2013 in respect of the duty paid on the goods exported. The Assistant Commissioner sanctioned the refund but appropriated an amount of Rs. 16,04,530/- (Rupees Sixteen Lakhs Central Excise Appeal No. 20035 of 2020 6 Four Thousand Five Hundred and Thirty only) towards arrears pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of unjust enrichment and refund under Section 11B of the Central Excise Act/Section 27 of the Customs Act in the Mafatlal Industries Ltd. case (supra). 10. In Para 100 of the Mafatlal Industries Ltd. judgment, the Supreme Court had directed that in respect of claims which had been pending in suits/writ appeals, the concerned petitioners should file refund claims within 60 days of pronouncement of the judgment in that case. In the instant case, the appellants had received favourable orders vide Orders-in-Appeal dated 14-6-93 and 30-10-96. Subject claims had not been pending in any proceeding before any court at the time when the Hon'ble Supreme Court pronounced the judgment. What the Hon'ble Supreme Court ordered in Para 100 extracted above is in respect of claims involved in pending Writ petitions/Writ appeals/suits. Therefore, it cannot be said that the subject claims are governed by the directions of the Apex Court referred to above. In the Kerala State Electricity Boards case, the Kerala High Court dismissed the petition filed by the Kerala State Electricity Board for the reason that they had not complied with this direction of the Hon'ble Supreme Court and ordered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra, I am of the view that the ratio of the said decisions is squarely applicable to the facts of the present case and I set aside the impugned order by allowing refund claims to the appellant. 6.1 As far as demand of interest for delayed refund is concerned, the issue is squarely covered by the decision of the apex court in the case of Ranbaxy Laboratories Ltd. reported in 2011 (273) ELT 3 wherein the Hon'ble Supreme Court has held in para 9 and 10 as under: "9. It is manifest from the afore-extracted provisions that Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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