TMI Blog2004 (2) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner, Central Excise by not accepting the claim of the petitioner's to be a new industrial undertaking. 4.By order dated 13-5-91, the Commissioner (Appeals) decided the case in favour of the petitioner. This led to a request for refund of the aforesaid sum vide application dated 15-2-92. A prayer was also made that the petitioner may be permitted to take credit of the aforesaid amount along with interest due on the amount claimed as refund in its future clearance. 5.However prayer was not granted. The order of the Commissioner, (Appeals) dated 13-5-91 was subjected to appeal by the Revenue before the CEGAT. The CEGAT upheld the claim of the Assessee petitioner vide its order dated 15-3-96 and dismissed the appeal. 6.The order of the CEGAT upholding the claim of the assessee as a new industrial undertaking and its entitlement to rebate and liability to pay Duty @ 155 per metric ton only instead of Rs. 205/- per metric ton for relevant time was accepted by the Revenue. 7.Still the refund was not to be made. Instead a show cause notice was issued to the petitioner in the first instance for transferring the amount of refund Rs. 1,85,93,463/- to the Consumer Welfare Fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to claim interest at the rate or rates notified from time to time by the Board for the period during which such rates were in force with effect from expiry of three months from the date of application in terms of Section 11BB. 14.On the other hand learned Counsel for the respondents has urged that refund did not become due until CEGAT held in favour of the assessee-petitioner that the amount is not required to be transferred to the Consumer Welfare Fund but is to be paid to the appellant. The period of three months within which refund was to be made without interest, is to commence from the date of the order of CEGAT and since payment was made within four months, the petitioner is entitled only to interest for one month for detention of refund amount beyond three months after the order passed by CEGAT on 5-12-2002. 15.Learned Counsel for the petitioner has rejoined that refund became due within three months, from the date of the application making claim to refund on the ground of excess Duty paid by him during the period in question and the application was made within one year from the date of payment of excess duty, the time requisite from the relevant date when the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal's order did not by itself indicate the precise liability of the revenue to refund any specific amount to the respondent so as to give rise thereby to a liability to refund any specified amount on the date of the Tribunal's order." The Apex Court also observed that there is no provision in the Statute imposing obligation on revenue to pay interest on the amount refunded. 18.The aforesaid decision was rendered on 8-12-94 before the insertion of Section 11BB. Insertion of Section 11BB has made vital difference as now the statutory basis has been provided for imposing liability to pay interest on the refund amount if amount of refund claimed is not paid within the time fixed in the statute. 19.Section 11BB which governs the statutory provisions relating to liability of revenue to pay interest on late refunds reads as under : Interest on delayed"11BB. 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, (not below five per cent) and not exceeding thirty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the fund : Provided that the amount of duty of excise as determined by (Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise) under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the (Commissioner of Central Excise); (c) refund of credit of duty paid on excisable goods used as inputs in accordance with rules made, or any notification issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest w.e.f. 26-8-95 until the date of actual payment. 23.The scheme of payment of interest on belated payment of refund under the Central Excise Act, 1944 is one integrated within the provisions of Section 11B and 11BB. They have to be read together. 24.Sub-section 2 of Section 11B requires of making an application for claiming refund and provides limitation within which application is to be made from the relevant date. 'The relevant date' has been defined for the purpose of Section 11B(1) in Clause (B) to the Explanation appended to Section 11B. Sub-clauses (ea) (eb) in the Explanation were inserted by Finance Act, 1998. The petitioner's case is governed by sub-clause (f) of Clause (B) of Explanation. Relevant date for computing the period of limitation for making application under Explanation (B)(f) is the date of payment of the Duty. Read together it would reveal that the claimants were required to make an application for refund within one year from the date of payment of Duty under protest which became the relevant date to claim refund for the petitioner. 25.Even according to the facts which are not in dispute it is apparent that assessee petitioner has laid claim b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT ultimately upheld the claim of the petitioner to rebate. On the respondents own showing the refund became due, if it were to become due on the determination by the competent authority, on the date CEGAT dismissed the appeal of Revenue on 15-3-96. Still no payment of refund was made to the petitioners. 30.The fact that thereafter the time was taken by respondents to decide whether such excess amount will be paid to Consumer Welfare Fund or to the assessee will not affect the end result that it could not be retained by respondents as tax collected by them without authority of law. Only issue was to be to whom it is to be paid. None will suffer delay. 31.In this connection we may notice the provision of sub-section (2) of Section 11B. The principal provision required the Excise Officer to deposit the amount of refund in Consumer Welfare Fund. However, the assessee claimed that he is entitled to refund under the proviso to sub-section (2) of Section 11B as the amount is not liable to be paid to Consumer Welfare Fund. This question is required to be adjudicated. The Assisting Authority did not agree with the same and rejected the claim of assessee that refund be made to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. This is so because under the provision of law ordinarily amount of excise Duty claimed by the Excise Dept. has to be transferred to Consumer Welfare Fund. The assessee gets actual refund only when order is made with reference to any of the clause of proviso to sub-section (2) of Section 11B. 36.However, the payment of interest was linked not to the order under Section 11B(2), but with the application required to be made under Section 11-B (1). As discussed above every person who claims a refund is first required to make an application under Section 11B(1) before time limit stated therein from the relevant date. The relevant date defined under Explanation B(f), applicable to present case, is the date of payment of Duty and not the date of determination about excess payment of Duty. Until substituted vide Finance Act, 2000, any claimant, to refund was required to make an application before expiry of six months from the relevant date, which in the case of the petitioners, who did not fall within Clause (a)(e) of Explanation B to Section 11B was the date of payment of Duty. The period for making such applications since Finance Act, 2000 has been enhanced to one year. 37.Interes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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