TMI Blog2021 (8) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... at adjudication by filing the case as decided in PRINCIPAL COMMR. OF CUS., C.E. S.T., NAGPUR VERSUS FABRIMAX ENGG. PVT. LTD. [ 2017 (2) TMI 1316 - BOMBAY HIGH COURT] where they upheld the order of the Tribunal. It is thus clear that for the earlier period from January-2014 to December-2014 the claim for refund made by the appellant under Rule 5 of the said Rules was upheld by the Tribunal as well as by this Court. Notably this adjudication pertains to the appellant itself. Despite the fact that the aforesaid orders were placed before the Tribunal in the present proceedings it has not given due weightage to the same but has sought to distinguish the same on untenable grounds. The entitlement to refund under Rule 5 of the Rules stands established in view of the legal position referred to above as the claim as made has been disallowed in a manner contrary to law. In that view of the matter the substantial question of law as framed is answered by holding that the appellant is entitled for refund under Rule 5 of the said Rules read with notification dated 17.03.2012 and Section 11B of the said Act. Time limitation for calculation of interest on delayed refund - HELD THAT:- Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 96,53,590/-. The refund was claimed on account of duty paid on inputs used in the manufacture of finished goods cleared under ICB during the period from January-2015 to March-2015. On 12.05.2015 a show cause notice was issued to the appellant proposing to reject the refund as claimed principally on the ground that there was no Physical Export under Rule 5 of the said Rules for seeking refund. Since the clearances under ICB were treated as deemed exports it was proposed to refuse the refund. The appellant filed its reply on 29.06.2015 justifying its entitlement for refund. The Assistant Commissioner by his order dated 16.07.2015 rejected the refund claim which order was maintained on 11.03.2016 by the Commissioner (Appeals) and further on 11.02.2021 by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai. Being aggrieved, the appellant has filed this appeal. 3. Shri S.S. Dewani, learned counsel for the appellant submitted that the question as to whether goods cleared under the notification dated 17.03.2012 against ICB at Nil rate of duty would entitle the appellant for refund under Rule 5 of the said Rules stands concluded in favour of the appellant especia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es had attained finality. 5. On hearing the learned counsel for the parties and after giving due consideration to their respective submissions, we are of the view that the substantial question of law as framed has to be answered in favour of the appellant. It is undisputed that for the period from January2014 to December-2014 the present appellant had claimed similar refund of Cenvat credit under Rule 5 of the said Rules on the ground that said credit remained unutilized due to clearances of the final products under ICB. The Tribunal by its judgment dated 17.06.2016 considered the judgment in the case of Shilpa Copper Wire Industries (supra) and held that in view of that decision, the clearances made by the appellant herein to ICB had to be considered as exports for being entitled to claim refund of Cenvat credit. The Revenue proceeded to challenge that adjudication by filing Central Excise Appeal No.15/2016 and this Court on 22.02.2017 upheld the order of the Tribunal. It is thus clear that for the earlier period from January-2014 to December-2014 the claim for refund made by the appellant under Rule 5 of the said Rules was upheld by the Tribunal as well as by this Court. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest on the amount of refund to which the appellant has been found entitled. Placing reliance on the decision in Commissioner of Central Excise, Hyderabad Versus ITC Ltd. [(2005) 13 SCC 689], Vikram Ispat Versus Union of India [2009 (234) ELT 74], Ranbaxy Laboratories Limited Versus Union of India Others [(2011) 10 SCC 292], Commissioner of Central Goods and Service Tax and Central Excise, Daman Versus Alfa Packaging [AIR ONLINE 2019 BOM 1322] and the judgment of the Division Bench of this Court at the Principal Seat in Writ Petition No.1775/2020 [Qualcomm India Private Limited Versus Union of India Others] decided on 21.05.2021 it was submitted that on the expiry of the period of three months from the receipt of the application for refund, the appellant would be entitled to receive interest till the amount is received by it. It was submitted that the refund application dated 15.04.2015 preferred by the appellant under Rule 5 of the Cenvat Credit Rules was received by the respondent on 17.04.2015. Hence, on the expiry of the period of three months from that date, the appellant would be entitled to receive interest. On behalf of the respondent it was submitted that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled for refund under Rule 5 of the said Rules the amount of refund would carry interest under Section 11BB of the said Act on the expiry of three months from 17.04.2015 on which date the refund application was received by the respondent till actual payment of the amount of interest. 9. In the light of the answers to the aforesaid substantial questions of law, the following order is passed: (I) The order dated 11.02.2021 passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (Regional Bench) in Excise Appeal No.86434/2016 is set aside. (II) It is held that the appellant is entitled to refund under Rule 5 of the Cenvat Credit Rules for the amount of ₹ 96,53,590/which has been verified by the Deputy Commissioner CGST and Central Excise, Division Hingna by the communication dated 26.07.2021. (III) The aforesaid amount of refund shall be paid with interest in terms of Section 11BB of the Central Excise Act, 1944. The amount of interest shall be calculated by the Authority that has issued the show cause notice dated 12.05.2015 in the light of the observations made hereinabove. That amount be calculated and paid to the appellant within a period ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
