TMI Blog2024 (2) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings whether for the period prior insertion of the Section 11BB before or after, there are no merits in this appeal. In the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [ 2011 (10) TMI 16 - SUPREME COURT] , SC held that liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. There are no merits in this appeal filed by the revenue - appeal dismissed. - ( P. K. CHOUDHARY ) MEMBER ( JUDICIAL ) And ( SANJIV SRIVASTAVA ) MEMBER ( TECHNICAL ) Shri A. K. Choudhary , Authorized Representative for the Revenue Shri Kapil Vaish , Chartered Accountant for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is filed by the Revenue against Order-in-Appeal No.GZB/EXCUS/000/APPL-MRT/172/2019-20 dated 23.09.2019 passed by Commissioner (Appeals) Central Goods Services Tax, Meerut. By the impugned order following has been held: 6. In view of the above discussion and findings, the impugned Order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin three months from the date of filing of refund claim. In the subject case, the refund of Rs.1,11,11,941/- is being sanctioned to the party within the stipulated period of three months, hence interest is not applicable to the party in the instant case. ➢ Section 11BB of the Central Excise Act, 1944 was inserted w.e.f. 26.05.1995 by Section 75 of the Finance Act, 1995 (22 of 1995). Prior to that, there was no provision for the interest in the law. The refund claim of the party pertains to the period 14.05.1986 to 30.06.1990 i.e. prior to the insertion of the Section 11BB and this insertion does not indicate whether these provisions have retrospective effect. Hence, interest is not applicable to the party. 3.1 We have heard Shri A. K. Choudhary Authorized Representative for the Revenue and Shri Kapil Vaish Chartered Accountant for the Respondent. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 Undisputedly these proceedings are in the sequel of Tribunal Final Order No.70830 of 2018 dated 07.03.2018. While recording the facts Tribunal as in has very clearly recorded the date of filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and law provided that during the relevant time if duty was paid under protest, limitation did not apply therefore we hold that the present application for refund is not hit by limitation. We further hold that appellant has proved that the duty burden was not passed on to the customers relying on the ruling of Hon ble Supreme Court in the case relied by him. We therefore allow the appeal and direct Revenue to pay the refund along with applicable rate of interest within a period of 90(ninety) days from the date of receipt of this order. 4.4 From the perusal of the above, we are very clear that there is no dispute that this order was in respect of a refund application filed on 07.04.1997. If Revenue was aggrieved by the facts as recorded in this order they should have filed an application under Section 35 C (2) of the Central Excise Act, 1944 for getting the facts as recorded in the final order of tribunal or could have filed an appeal to the concerned appellate authority. Having not done so there cannot be any dispute about the fact that entire proceedings are in respect of the refund application filed on 07.04.1997. Commissioner (Appeals) findings in this regard cannot be fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (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. 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 application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. Wherever reasons are given, these are found to be very vague and unconvincing. In one case of consequential refund, the jurisdictional Central Excise officers had taken the view that since the Tribunal had in its order not directed for payment of interest, no interest needs to be paid. 2. In this connection. Board would like to stress that the provisions of section 11BB of Central Excise Act, 1944 are attracted automatically for any refund sanctioned beyond a period of three months. The jurisdictional Central Excise Officers are not required to wait for instructions from any superior officers or to look for instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Delhi High Court. It is evident from a bare reading of the decision that insofar as the reckoning of the period for the purpose of payment of interest under Section 11BB of the Act is concerned, emphasis has been laid on the date of receipt of application for refund. In that case, having noted that application by the assessee requesting for refund, was filed before the Assistant Commissioner on 12th January 2004, the Court directed payment of Statutory interest under the said Section from 12th April 2004 i.e. after the expiry of a period of three months from the date of receipt of the application. Thus, the said decision is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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