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TMI Blog2023 (2) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... 987/- was lying in their cenvat credit and service tax register. 3. The appellant applied under Rule 5 of the Cenvat Credit Rules, 2004 for refund of the unutilized cenvat credit, which was rejected by the Assistant Commissioner, Bhiwadi vide Order-in-Original No. 388/2011-12 dated 09.08.2011. The appeal filed against the said order was also rejected by the Commissioner (Appeals) vide Order-in-Appeal No. 186(RDN)CE/JPR-I/2012 dated 07.11.2012. The appeal filed by the appellant came to be rejected by the Tribunal, New Delhi vide Order No. A/52941/2017-CE(DB) dated 20.04.2017. The appellant took up the matter before the Hon'ble High Court of Rajasthan and by the Final order dated 07.02.2018 (as reported in 2018 (15) GSTL 257) the appeal was allowed, inter alia observing:- "12. Four different High Courts have also taken the view against which the SLP was preferred and earlier also the Tribunal granted refund against which the SLP was not preferred. In that view of the matter, the principle of estoppels applies as once the department has accepted the view taken by the Tribunal it will not be appropriate to challenge the same by choosing the present assessee. 13. In our considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the issue which arises for our consideration is whether the appellant is entitle to claim interest on delayed refund under section 11BB of the CE Act, 1944 in the facts and circumstances of the present case. Section 11BB deals with interest on delayed refunds. The said provision is extracted below:- "11BB. Interest on delayed refunds.-If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, 2[not below five per cent. and not exceeding thirty per cent. per annum as is for the time being fixed 3 [by the Central Government, by notification in the Official Gazette] on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty: Provided where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit. That such credit can be availed of provided the inputs are used and not otherwise is clear from the scheme of the rules to which we have made a detailed reference in the foregoing paragraphs." 10. We are informed that the aforesaid order is under challenge before the Hon'ble Supreme Court in C.A. No. 2549/2020 and other batch of matters are also pending. However, no stay has been granted. 11. We find that the appellant herein being unsuccessful 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. 12. Today the controversy has been set at rest by the decision of the Larger Bench of the High Court of Mumbai in Gauri Plasticulture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of GST (East) -2019 (25) GSTL 24 where the issue raised by the assessee was that the Tribunal had not dealt with his grievance that Assistant Commissioner did not grant the claim for interest on refund of service tax, which was allowed. So, if the High Court in the present case had not granted interest, they ought to have challenged the said order before appropriate forum as the Tribunal has no power to award interest on the amount of refund by exercising inherent power. 13. The ld. Authorised Representative for the Revenue has referred to the decision of the Hon'ble High Court of Allahabad in the case of Prestige Engineering (India) Pvt. Ltd., vs. Union of India -1991 (51) ELT 255, where the Court decided the issue that the Central Excise Authorities and the Tribunal are not empowered to award interest under Section 11B of C.E. Act, 1944. We feel that in the present case refund of unutilized cenvat credit was not admissible in terms of Rule 5 of Cenvat Credit Rules, 2004 and consequently this Tribunal is not empowered to grant interest thereon. 14. In effect the appellant had no right under Section 11BB of C.E. Act, 1944 to get the refund on account of unutilised Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was actually engaged in export of services and was registered as 100% EOU. 17. The reliance placed on the Circular No. 670/61/2002-CX dated 01.10.2002 also needs to be rejected in view of the peculiar facts of the present case, whereby the appellant became entitled to the refund towards unutilized cenvat credit by virtue of the order of the High Court of Rajasthan on a mere technicality. Therefore, the circular is inapplicable in so far as the present case is concerned. 18. We are of the view that 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. 19. Since we have taken the view on merits that 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 gone into. Consequently, the appeal is dismissed and the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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