TMI Blog2023 (2) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... uccessful in claiming the refund of unutilised Cenvat Credit, approached the Honorable High Court of Rajasthan. The Learned Division Bench after referring to the judgments of various High Courts and also the orders passed by the Apex Court concluded that the Tribunal by the impugned order cannot distinguish the judgments of the High Courts and therefore answered the issue in favour of the assessee. Though the revenue challenged the said order before the Apex Court, however the same stood dismissed on account of low monetary limits. As a result, the application made by the appellant for refund was allowed. If the claim for refund itself was not maintainable in law, the question of grant of interest does not arise. The relief of refund was allowed in favour of the appellant in terms of the order of the High Court of Rajasthan, however the same was silent on the issue of interest as no relief was claimed in that regard by the appellant. Therefore, no relief of interest on delayed refund can be allowed to the appellant at this stage. The appellant is not entitle to interest on delayed refund, the issue of limitation as decided by the Adjudicating Authority is not required to be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l High Court and at the most they can refer it back prior to distinguish on facts but no authority has been made. Full Bench decision of the Tribunal has to be followed. 14. Hence, we answer the issue in favour of assessee against the department. 4. That in terms of the aforesaid order of the Hon ble High Court, the appellant filed refund claim on 24.09.2018 and the same was sanctioned vide Order-in-Original No. 120/2018-19 dated 31.12.2018 by the Assistant Commissioner, Bhiwadi. The Revenue challenged the order of the High Court before the Apex Court in SLP(C) No. 15619/2019, however vide order dated 06.02.2019 the same was disposed of in view of low revenue being involved. 5. The appellant then made a claim for interest under Section 11BB of C.E. Act for sum of Rs. 61,85,154/- on 05.03.2019. The Adjudicating Authority vide order dated 14.06.2019 rejected the claim for interest on the ground of limitation. The appellant challenged the said order before the Commissioner (Appeals), which was also rejected by the impugned order dated 29.01.2021 and hence the present appeal has been filed. 6. The argument put forward by the counsel for the appellant is that the claim in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund of such duty. Explanation.-Where any order of refund is made by the Commissioner (Appeals). Appellate Tribunal 4[, National Tax Tribunal] or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), 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.] 9. The issue needs to be examined in the light of the decision of the Larger Bench of the Bombay High Court in the case of Gauri Plasticulture P. Ltd., 2019 (30) GSTL 224. The Hon'ble High Court considered all the earlier judgments taking contrary views, also the orders passed by the Apex Court keeping the question of law open and referring to the provisions of Rule 5 and 11 of the Cenvat Credit Rules, 2004, negatived the contention of the assessee that cenvat credit can be refunded even in relation to those inputs which have not been used in the manufacture of the final product or the exported goods. The observations of the High Court are in following terms: 30 . Prior to such substitution, we have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inguished the order dated 07.02.2018 of Rajasthan High Court, passed in the case of the appellant, to the effect: 35 . The Special Leave Petition was dismissed, but the question of law was expressly kept open. It is in these circumstances that we are not in agreement with Mr. Patil that the issue or the controversy before us stands concluded against the Revenue. The question of law was still open to be raised and equally examined by us. There is no question of judicial discipline in such matters. The counsel relied upon this principle of judicial discipline by inviting our attention to the judgment of the Hon ble Rajasthan High Court in the case of Welcure Drugs and Pharmaceuticals Ltd. v. Commissioner of Central Excise, Jaipur reported in 2018 (15) G.S.T.L. 257. There, the Hon ble Rajasthan High Court concluded that the Revenue cannot seek to urge before that High Court that the view taken by four different High Courts approving the order of CESTAT has lost its persuasive value, particularly when the Special Leave Petitions against the view taken by four different High Courts were either not filed or filed but not entertained. Thus, the Tribunals have taken a consistent view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable in view of the peculiar facts of the present case. 15. The appellant in his submissions has relied on judgments in the case of Ranbaxy Laboratories Ltd., vs. Union of India -2011 (273) ELT 3 (S.C.), Union of India vs. Hamdard (Waqf) Laboratories -2016 (333) ELT 193 (S.C.), where the Apex Court have basically decided the issue as to the date of commencement of the period for the purpose of payment of interest on delayed refund with reference to the provisions of Section 11B and Section 11BB of the C.E. Act, 1944. There was no issue as to the entitlement of refund. In so far as the said principle is concerned, the same are binding on us but the issue in the present case is quite different. 16. The other judgements cited by the learned Counsel for the appellant are also distinguishable in view of the peculiar facts of the present case. Learned. Counsel for the appellant has tried to refute the observations made by the Bench during the course of hearing that credit is not duty, taking the plea that Revenue/ Tribunal cannot make out a new case at this stage. We find that the Commissioner (Appeals) specifically observed that though the statue does not provide for any such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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