TMI Blog2008 (7) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... h Mrs. N. Masurkar, for the Petitioner. S/Shri Sreedharan with Prakash Shah i/b M/s PDS Legal, for the Respondent. [Order]. - P.C. : The facts that are material and relevant for deciding this appeal are that the respondent M/s. Ballarpur Industries Ltd. is holder of central excise registration and is engaged in the manufacture of paper and paperboard falling under CSH 48 of the First Schedule to the Central Excise Tariff Act, 1985. The respondent submitted an application under Section 11B of the Central Excise Act for refund of Excise duty paid by it. The claim of the respondent for refund was rejected by the Assistant Commissioner of Central Excise and Customs by order dated 5-5-1998. The respondent submitted second applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent-company was entitled to payment of interest under Section 11BB of the Act. That order was challenged in the appeal by the department. That appeal has been rejected by the Tribunal by order dated 11-12-2006. The Tribunal has held that the refund has to be made within three months from the date of filing of application for refund and not from the date on which order is made directing the refund. The case of the department is that as the refund was made within the period of three months from the date of the order passed by the appellate authority sanctioning the refund, no interest under Section 11BB of the Act is payable. 2. For considering this appeal, the substantial question of law which, according to the learned Counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) of substituted by that Act :] [Provided further that] the limitation of [one year] shall not apply where any duty has been paid under protest. (2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the incidence of duty has not been passed on by the persons concerned to any other person." Perusal of sub-section (1) of Section 11B of the Act shows that an application for refund of duty paid is to be made to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise in prescribed form and the documents that may be necessary for deciding the application are also to be submitted. Perusal of sub-section (2) of Section 11B of the Act shows that, there after, the authority viz. Assistant Commissioner or Deputy Commissioner are required to hold inquiry and if at the end of the inquiry the authority is satisfied that whole or part of the duty paid is to be refunded then an order can be made accordingly by the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals), Appellate Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.]" Perusal of the above provision shows that Section 11BB of the Act comes into operation only after an order for refund has been made under Section 11B of the Act. It lays down that in case any duty paid is found refundable then if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under Section 11B of the Act, then interest on the amount is liable to be paid on expiry of period of three months from the date of receipt of the application. The Explanation appearing below Section 11BB of the Act shows that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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