TMI Blog2021 (12) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... any mala fide or intent to evade on the part of the respondent thereby ruling out the applicability of the pre-amended Section 11AB(1). The Board vide Circular dated 26 June 2002 taking note of the decision of the Hon ble Supreme Court in the case of MP Tapesrendered in the context of Section 11AB, clarified that the date of passing of the adjudication orders have no bearing in the matter of interpretation of the expression duty become payable or ought to have been paid - the contentions of the revenue as regards passing of the adjudication orders holding the refund as erroneous in February 2002 does not allow them to take recourse to amended Section 11AB(1) in view of the restrictions contained in the amended Section 11AB(2). The propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IO ) dated 10 January 2008 and dropping the demand for interest of ₹ 73,15,99,057/- under Section 11AB(1) of the Central Excise Act, against M/s. Numaligarh Refinery Limited, the respondent herein. 2. Briefly stated, the facts of the case are that the Respondent is a Public Sector Undertaking engaged in the manufacture of Petroleum products having its refinery at Golaghat, Assam. The Respondent was erroneously refunded the Additional Excise Duty (AED) of ₹ 111,51,58,051/- levied on HSD under Section 133 of the Finance Act, 1999 amongst other duties of excise, pursuant to Notification No.33/1999 dated 8 July 1999 for the period 1 May 2000 to 31 May 2001. Subsequently, proceedings were initiated for recovery of the said erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during the period May 2000 to May 2001. As there was no fraud/collusion/suppression of facts etc., with intent to evade payment of duty hence there was no proposal in the Show-cause Notice for imposing penalty, hence Section 11AB as it stood on or before 11.05.2001 is not applicable in this case. 3. The learned Authorized Representative appearing for the Revenue has assailed the OIA dated 25 November 2010 by reiterating the following grounds of appeal urged in the appeal memo. (a) The issue of grant of erroneous refund was decided by the Commissioner vide Order dated 28 February 2002. Since the erroneous refund became payable only after amendments were made to Section 11AB (effective 11 May 2001), the limitation placed under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on 28 February 2002, it takes effect from the date of grant of such erroneous refund as the refund was never due to the respondent at the first place. (b) The amended Section 11AB(2) carves out an exception from the applicability of whole of Section 11AB(1). Refund under the Act is also of duties paid and therefore, covered by the scope of Section 11AB(2) by drawing support from the decision of the Tribunal in the Case of Ford India Vs. CCE reported in 2007 (209) ELT 230. (c) The expression duty become payable or ought to have been paid under the amended Section 11AB(2) does not refer to the actual date of payment to determine whether the interest can be charged, by placing reliance on the decision of the Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of the AED for the period April 2000 to May 2001. Section 11AB was inserted in the statute book only with effect from 28 September 1996. Intention to evade was an essential concomitant under the pre-amended Section 11AB(1), however, the said requirement was done away with under the amended Section 11AB(1). In the instant case, it is an undisputed position clearly forthcoming from the case records that the erroneous refund of AED to the respondent was not attributable to any mala fide or intent to evade on the part of the respondent thereby ruling out the applicability of the pre-amended Section 11AB(1). Further, the amended Section 11AB(2) (effective 11 May 2001) conspicuously provides as under: The provisions of sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposal in the Notice to recover interest from the date of grant of erroneous refund as evident from the annexure thereof itself militates against the revenue s contention of the interest liability accruing under the amended Section 11AB basis the date of the adjudication order. 8. The other contention of the Revenue that the amended Section 11AB(2) does not extend to erroneous refund also cannot be accepted as the amended Section 11AB(2) circumscribes the whole of 11AB(1) including grant of erroneous refund and refund under the Central Excise Act is also of duties paid only. However, we observe that the refund of AED for the month of April 2001 and May 2001 was granted to the Respondent only after 11 May 2001. Therefore, the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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