TMI Blog2023 (5) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment we find that the issue under consideration before the Hon ble Apex Court as per para 16 was in respect of interpretation of Sections 237, 240, 243 and 244 of the Income Tax Act, 1961 - On perusal of the said sections and section 11BB of Central Excise Act, we do not find that these sections are in pari materia. Accordingly the reliance placed by the counsel on the above referred decision of Hon ble Supreme Court would not be proper. There are merits in the appeal of the Revenue. The interest under Section 11BB of the Central Excise Act is required to be paid to the respondent for any delay beyond three months from the date of filing the refund claims viz. 23.06.1997 and 03.07.1997 - appeal allowed. - Excise Appeal No. 87542 of 2022 - FINAL ORDER NO. A/85578/2023 - Dated:- 27-3-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) And HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Deepak Bhilegaonkar, Additional Commissioner, Authorised Representative for the Appellant Shri Nitesh Agarwal, Chartered Accountant, for the Respondent ORDER PER : SANJIV SRIVASTAVA This appeal by the Revenue is directed against Order-in- Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved respondent filed appeal to Commissioner (Appeals) and the Commissioner (Appeals) has vide the impugned order allowed the appeal as referred in para 1 above, in favour of the respondent. Aggrieved Revenue has filed this appeal stating the following grounds:- 3.1. In light of the aforementioned statutory provisions the respondent is not entitled for interest from the date of payment of tax, but, after 3 months from the date of filing the refund application. The assessee deposited the duty amount during the period from August 1979 to March 1987, but the claim of refund was filed on 23.06.1997 for Rs.3,31,806/- and Rs.4,55,347/- and 03.07.1997 for Rs.28.49.7621- 3.2. Further, while placing reliance on the judgements in the case of M/s Ranbaxy Laboratories Ltd. M/s Surajbhan Synthetics (P) Ltd), the learned appellate authority has held contrary to the ratio of the said rulings as, it was held in these cases that, the interest on delayed refund is payable on expiry of three months from the date of receipt of application under section 11(B)(1) of the C.Ex. Act, 1944. Therefore, the learned Commr (Appeals) conclusion have traversed beyond the mandate of the ruling of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal [, National Tax Tribunal] or any court against an order of the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal [National Tax 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. 4.3 From the plain reading of the above section it is evident that the interest in case of delayed refund is payable only for the period of delay beyond three months from the date of filing the application. 4.4 Hon ble Supreme Court has in the case of Ranbaxy Laboratories Ltd. [2012 (27) STR 193 (SC)] held as follows:- 9. It is manifest from the afore-extracted provisions that Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the Board has stressed that the provisions of Section 11BB of the Act are attracted automatically for any refund sanctioned beyond a period of three months. The Circular reads thus : Circular No. 670/61/2002-CX, dated 1-10-2002 F. No. 268/51/2002-CX.8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Non-payment of interest in refund/rebate cases which are sanctioned beyond three months of filing - regarding. I am directed to invite your attention to provisions of section 11BB of Central Excise Act, 1944 that wherever the refund/rebate claim is sanctioned beyond the prescribed period of three months of filing of the claim, the interest thereon shall be paid to the applicant at the notified rate. Board has been receiving a large number of representations from claimants to say that interest due to them on sanction of refund/rebate claims beyond a period of three months has not been granted by Central Excise formations. On perusal of the reports received from field formations on such representations, it has been observed that in majority of the cases, no reason is cited. Whereve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 33 : A close reading of Section 11BB, which now governs the question relating to payment of interest on belated payment of interest, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under subsection (2) of Section 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund but the relevant date is to be determined with reference to date of application laying claim to refund. The non-payment of refund to the applicant claimant within three months from the date of such application or in the case governed by proviso to Section 11BB, non-payment within three months from the date of the commencement of Section 11BB brings in the starting point of liability to pay interest, notwithstanding the date on which decision has been rendered by the competent authority as to whether the amount is to be transferred to Welfare Fund or to be paid to the applicant needs no interference. The special leave petition is dismissed. No costs. 14. At this stage, reference may be made to the decision of this Court in Shreeji Colour Chem Industries (supra), relied upon by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf : 7[Provided that where, by the order aforesaid,- (a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment; (b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax changeable on the total income returned by the assessee .] 243. Interest on delayed refunds. - (1) If the Income-tax Officer does not grant the refund - (a) in any case where the total income of the assessee does not consist solely of income from interest on securities or dividend, within three months from the end of the month in which the total income is determined under this Act, and (b) in any other case, within three months from the end of the month in which the claim for refund is made under this Chapter, the Central Government shall pay the assessee simple interest at (twelve) per cent per annum on the amount directed to be refunded from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any interest is payable to an assessee under this sub-section, no interest under sub-section (1) shall be payable to him in respect of the amount so found to be in excess. (2) Where a refund is withheld under the provisions of section 241, the Central Government shall pay interest at the aforesaid rate on the amount of refund ultimately determined to be due as a result of the appear or further proceeding for the period commencing after the expiry of three months from the end of the month in which the order referred to in section 241 is passed to the date the refund is granted. 4.7 On perusal of the said sections and section 11BB of Central Excise Act, we do not find that these sections are in pari materia. Accordingly the reliance placed by the counsel on the above referred decision of Hon ble Supreme Court would not be proper. 4.8 Respondent has relied upon various other decisions which do not help the cause of the respondent for the reason that these decisions do not take note of the decision of Hon ble Supreme Court in the case of Ranbaxy Laboratories Ltd. 4.9 Further the amounts deposited by the respondent in the present case are not in nature of deposits made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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