TMI Blog2008 (7) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... er for payment of interest to the petitioner in accordance with law, in the light of this order and the provisions of Section 11BB of the Central Excise Act, within a period of four weeks from today. - 483 of 2008 - - - Dated:- 10-7-2008 - D.K. Deshmukh and V.C. Daga, JJ. [Order]. - P.C. : By this petition, the petitioner challenges the order passed by the Joint Secretary (RA) to Government of India, rejecting the revision application filed by the petitioner herein. The facts which are relevant and material for deciding this petition are that the petitioner is a company incorporated under the Companies Act and is engaged in manufacture of motor vehicles. The vehicles are subject to duty of excise. According to the petitioner, it used to send the duty paid chassis fitted with engines manufactured by it to independent body builders for fabricating body on those vehicles. The activity of building body on the duty paid chassis amounts to manufacture. Hence, the duty is again paid on the body built vehicles when the vehicles fitted with the body are cleared from the premises of the body builders. Thus, when the vehicles are cleared from the premises of the body builders, the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 refund claims of the petitioner are concerned, it appears that because the proceedings in relation to 29 claims were going on, those claims were kept pending and no orders were passed on those claims. But sifter the refund was ordered against 29 claims by order dated 19-11-1999, various orders were passed from 26-12-2001 to 29-3-2003 sanctioning refund against those 18 claims also i.e. Rs. 34,68,682/-. 2. Thereafter, the petitioner wrote letters to the authorities claiming interest under the provisions of Section 11BB of the Central Excise Act. There was no response to those letters for a long time, but ultimately by letter dated 1-1-2 004 the petitioner was informed that the petitioner is not entitled to payment of any interest on the refund claim under Section 11BB of the Act. Against that letter, an appeal was filed before the Commissioner, Central Excise (Appeals). That appeal was rejected by order dated 20-12-2005, and therefore, a revision was filed before the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue. That revision has been rejected by the order which is impugned in this petition. The Joint Secretary has held that the applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the (Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise) before the expiry of (one year) (from the relevant date) [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) of substituted by that Act : Provided further that] the limitation of [one year] shall not apply where any duty has been paid under protest. (2) If, on receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on by him to any other person. Following things are clear from the perusal of the provision of sub-section (1) of Section 11B of the Act viz. (a) the application has to be made in the form which is prescribed; (b) along with the application documents are to be submitted for establishing two aspects viz. (i) that excise duty of which refund is claimed was actually paid, and (ii) that the burden has not been passed on. The rule making authority has framed Rule 173S which reads as under :- "RULE 173S. Application for refund of duty. - (1) Any person claiming refund of any duty of excise shall make an application in duplicate, for refund of such duty in the proper form to be [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] having jurisdiction over the factory of manufacture. (2) An application for refund shall be made in accordance with the provisions of section 11B of Act." Perusal of this Rule shows that all that the rule requires is that an application is to be made in duplicate and is to be made in proper form. Form-R is prescribed by the Rule for making an application for refund of excise duty. Perusal of that form shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the case in the light of the Board circular dated 30-1-97 and now the appellate authority recorded a clear finding that the case of the petitioner for refund was covered fully by the circular dated 30-1-1997. Then in paragraph (9) in the appeal order it is observed thus :- "Accordingly as long as the chassis and engine Nos. referred in the original duty paying documents for the said goods correspond with those referred in the corresponding AR4, shipping bill and the bill of lading including export invoice, it can be reasonably considered that subject duty paid goods had been duly exported to satisfy the authorities in sanction of rebate." Now it is clear from these observations that the only inquiry that was to be made was that the same chassis and engine number which is mentioned in the duty paying documents when the duty was paid on chassis and engine is mentioned in the documents by which the bus was exported. In short, the inquiry that was to be made was to compare the number of chassis mentioned in the duty paying documents when the chassis went out of the factory of the petitioner with the number mentioned in the documents when the bus was exported. Then in the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records maintained at the two places with references to the peculiar chassis and engine numbers. These establish both the duties paid at the stage of clearance of chassis with engine from the appellants unit under Chapter sub-heading 8706 and also duties paid on body building under Chapter sub-heading 8707 by the body building unit." It is nobody's case that the document showing payment of duties on the chassis and engine and the document showing payment of duties on the bus were not produced with the application. The appellate authority directed production of a certificate from the jurisdictional Central Excise authorities certifying that the duties have been paid at both the times. 7. From the careful consideration of the order of the appellate authority, it is clear that the appellate authority did not find that the documents necessary for granting of refund were not filed along with the application. On the contrary, the appeal order shows that two necessary documents showing (i) that the duty has been paid on the chassis and (ii) that the duty has also been paid on the buses, were produced on record and the finding in favour of the petitioner on both these aspects are rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of three months from the receipt of application for refund then interest is liable to be paid. Perusal of the above provision makes it clear that liability to pay interest arises on expiry of period of three months "from the date of receipt of application under sub-section (1) of Section 11B." We have already referred, to above as to how application under Section 11B is to be made, therefore, unless a finding is recorded that the application that was filed by the petitioner under Section 11B cannot be termed as an application made under Section 11B, liability to pay interest after expiry of period of three months from the date of receipt of that application cannot be denied. Firstly there is no such finding recorded in the order impugned and secondly on close examination of the order of the appellate authority dated 30-7-1999 we find that it cannot be said that the application filed by the petitioner for refund was found to be so incomplete that it would not be termed as an application at all. The revisional authority in the order impugned has observed that the appellate authority found that a certificate from the authority was found necessary for establishing correlation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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