2016 (8) TMI 582 - AT - Central Excise

Entitlement of interest on refund - from 13/3/02 (being the date when 3 months ended from the date of application) up to 13/7/04 - refund claim was allowed and disbursed on 13/7/04 - Held that - the impugned order is hit by the doctrine of merger . The Id. Commissioner (Appeals) who is the subordinate authority than the Tribunal cannot enter into the question which has been decided by the Tribunal and have attained finality. Thus I hold that the impugned order is hit by the doctrine of merger and accordingly I set aside the same. Thus the appeal is allowed in favour of the appellant. I also hold that under the doctrine of merger, the Assistant Commissioner could not have rejected the interest on refund payable under section 11 BB in view of the clear interpretation given by the Hon ble Supreme Court confirming the judgement of the Rajasthan High Court dated 10/2/04 and further in view of the interpretation given by the Joint Secretary, Department of Revenue, Government of India vide his order dated 7/6/2000. Therefore the concerned authority is directed to grant interest for the period ending on 3 (three) months from the date of application dated 11/12/2001 till the date of disbursement of refund, that is 13/6/2004. Section 35F of the Central Excise Act, 1944 - Whether an appeal can be filed against a simple communication letter - Held that - it is found that the Commissioner appeals in error in holding that there is no appealable order. Any order or communication which has civil consequences on the assessee, is an appealable order. - Decided in favour of appellant

Summary

Issues:
Appeal against Order-in-Appeal, Refund claim rejection, Interest on refund, Doctrine of merger, Appealable order under section 35/35F.

Analysis:
1. The appellant, a manufacturer of Pan Masala and Gutkha, appealed against an Order-in-Appeal stating no appeal can be filed against a simple communication letter under section 35F. The dispute arose regarding the product classification, leading to a demanded additional duty paid under protest. The Show Cause Notice was dropped, and a refund claim was filed, rejected as time-barred and on the ground of unjust enrichment. The appeal was allowed with consequential relief, leading to the refund grant. However, the claim for interest was rejected based on Section 11 BB.

2. The appellant filed an application for interest under Section 11 BB, emphasizing entitlement to interest from the date ending on 3 months from the filing of the refund claim. The Assistant Commissioner communicated that the refund was granted within 3 months of filing, hence no interest was due. The appeal was rejected on the ground of no appealable order under section 35/35F, leading to the current appeal.

3. The appellant argued that interest is payable from the date of making payment of refund under Section 11 B, citing the J.K. Cement Works case. The revenue contended that the issue had reached finality as the claim for interest was denied earlier. The Tribunal held that the impugned order was hit by the doctrine of merger, allowing the appeal in favor of the appellant. The ruling of the joint secretary supported the payment of interest from the date immediately after the expiry of 3 months from the date of receipt of the refund claim.

4. Considering the contentions and the legal interpretations, the Tribunal held that the Assistant Commissioner erred in rejecting the interest on refund payable under Section 11 BB. The Commissioner Appeals also erred in holding that there was no appealable order. Any order with civil consequences on the assessee is appealable. The appeal was allowed, directing the concerned authority to grant interest from the date of the refund claim application till the date of refund disbursement.

This detailed analysis covers the issues of appeal against the Order-in-Appeal, rejection of the refund claim, interest on refund, the doctrine of merger, and the appealable order under section 35/35F as addressed in the judgment by the Appellate Tribunal CESTAT ALLAHABAD.