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TMI Blog2012 (10) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... e Industries Ltd., Barabanki, UP 180-190/CE/LKO/08 dated 26-11-08 passed by Commissioner of Central Excise (Appeals) Lucknow 3. 198/67/09 M/s. Reliance Industries Ltd., Barabanki, UP 114-126/CE/LKO/08 dated 27-10-08 passed by Commissioner of Central Excise (Appeals) Lucknow 2. As the issue involved in all these revision applications is similar, so these revision applications are being disposed off by this common order. RA No. 195/187-189/09 : 2.0 Brief facts of the cases are that M/s. Reliance Industries Ltd., Barabanki (UP) (hereinafter called as party) have effected export the goods under Rule 18 of the Central Excise Rules, 2002 on payment of Central Excise Duty paid on the Polyester Staple Fibre manufactured and cleared for export from their factory. The applicant filed these rebate claims applications on 24-12-07 under the provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-04 and in respect of each of the rebate claims they had filed the documents stipulated in para 8.3 of Chapter 8 of the C.B.E.C.'s Excise Manual of Supplementary Instructions 2005. Subsequent to the filing of rebate claims, the claims were returned back to applicant under letter/d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by these orders-in-appeal, both manufacturer exporter party and department have filed these revision applications on the following respective grounds : I. Grounds of Revision Application filed by applicant-manufacturer exporter M/s. Reliance Industries Ltd., Barabanki, UP 3.1 That there is no provision in Rule 18 or in Notification No. 19/2004-C.E. (N.T.), dated 6-9-04 or in the C.B.E.C.'s Excise Manual which requires the filing of information of original bank realization certificate to sanction interest on the sanctioned rebate claim amount. Thus, it cannot be said that non-submission of information of bank realization certificate with the rebate application amounts to non-submission of requisite documents and on that that ground payment of interest under Section 11BB cannot be denied. 3.2 Further, as held by the Hon'ble High Court in the case of Swaraj Mazda v. UOI - 2009 (235) E.L.T. 788, unless it is held that the application for refund/rebate that was filed by the assessee cannot be termed as an application at all under Section 11B of the Central Excise Act, 1944, liability to pay interest after the expiry of period of three months from receipt of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebate. In the present case, the Bill of Lading had been submitted with the rebate application and consequently the rebate ought to have granted without any delay and the grant of rebate could not have been delayed for alleged want of Bank Realization Certificate. 3.6 That the reliance placed by Commissioner (Appeals) in the case of B.R. Metal P. Ltd. v. C.C. - 2009 (235) E.L.T. 409 (Del.) Padmanabh Silk Mills v. UOI - 2006 (193) E.L.T. 536 Doon Polymicrons P. Ltd. - 2005 (188) E.L.T. 349 (Trib.) Mysore Leasing and Finance Ltd. v. C.C. - 2009 (14) S.T.R. 54 (Trib.) are not applicable in the instant case. 3.7 That the applicant had not filed any claim for refund of interest before the rebate sanctioning authority. He has erred in not appreciating that there is a difference between applying for interest on delayed refund. If an assessee has wrongly paid interest on duty, he may apply for refund of such interest by making an application under Section 11B. If on the other hand there is delay in grant of refund, interest on such delayed refund is payable to the assessee under Section 11BB for making such claim of interest does not arise. 3.8 That the applicant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been considered. Para 6 of order-in-appeal starts as under : "I have carefully gone through the records of the case. The only issue is to be decided in these appeals is that the payment of interest on delayed sanction of rebate claims is payable to the appellant." Thereafter the Commissioner (Appeals) after referring the order of Government of India In Re : Benny Impex (P) Ltd. and two other judgments of the Tribunal and Board's Letter F.No. 268/0108-CX.8, dated 18-1-08 (C.B.E.C. Circular No. 670/61/2002-CX., dated 1-10-02) has directed the Assistant Commissioner, C.Ex. Division-II, Lucknow to pay the interest. Finally in para 7 of the order-in-appeal, the order-in-original as mentioned in para-1 (of the order-in-appeal) is set aside and impugned appeals are followed. It is apparent from the effective portion of the order-in-appeal at para-7, that the orders-in-original sanctioning refund and rejecting interest is set aside but on the other hand allowing the appeals of the party is a self contradiction in the order-in-appeal. The observation of Commissioner (Appeals) granting interest to the party is contrary to the effective portion of order-in-appeal at para-7 which clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar mode, the claim should be rejected or returned with Query Memo (depending upon the nature/importance of documents not filed). The claim shall be taken as filed only when all relevant documents are available." (v) In view of the aforesaid legal and procedural requirements as stated in para (i) to (iv), the facts of the present cases were scrutinized by the Assistant Commissioner, the adjudicating authority and found that the Customs Seal given in Shipping Bill was found missing in Bill of Lading/Mate receipt, the rebate claims were referred back to the party on different dates mentioned at column 4 in the table below : TABLE Sl. No. Date of Receipt Amount of Rebate Claimed/Sanctio-ned Rs. Date of query/return of claim Date of re-submission order-in- original No. & Date date of dispatch of cheque (1) (2) (3) (4) (5) (6) (7) 1. 27-2-08 863451/- 13-3-08/ 10-4-08 14-5-08 52/08 dated 8-8-08 8-8-08 2. 28-11-07 741520/- 13-3-08/ 24-1-08/ 10-4-08 3-3-08/ 14-5-08 53/08 dated 8-8-08 8-8-08 3. 11-1-08 619009/- 26-2-08/ 13-3-08/ 10-4-08 3-3-08/ 14-5-08 54/08 dated 8-8-08 8-8-08 (vi) A letter dated 17-3-08 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for scrutiny of refund claim and they have also failed to submit BRC which is supposed to be available with them. Thus it is clear that the delay in sanction of rebate claim has occurred on account of incomplete application and non submission of BRC by the party. 4.4 The case laws relied upon by the Commissioner (Appeals) are not applicable in the instant case which has got its own peculiar fact and circumstances e.g. the party has submitted incomplete rebate claim and as soon as the rebate application was found complete and appropriate on 14-5-08, the refund was allowed within a period of three months w.e.f. the date of filing the complete application. 4.5 The Hon'ble Tribunal, Kolkatta in the case of C.C.E., Kolkatta-IV v. Hindustan Motors Ltd. [2008 (226) E.L.T. 137 (Tri.-Kol.) has held - Condition Nos. 40(c) & (d) stipulate that the respondents are required to submit evidence from the State Transport authority regarding registration of the vehicles exclusively for use as ambulances and taxies. Unless the respondents refund the amounts to the buyers and give proof thereof, the principles of unjust enrichment would not be satisfied, and no refund would be admissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Lucknow has contended that the rebate applications as originally filed cannot be said to be complete because the Customs Seal number given in the Shipping Bills was not mentioned in the Bills of Lading/Mate Receipt and it was only by letter dated 30-4-08 that the Assistant Commissioner of Customs (Docks/Export department), Jawaharlal Nehru Customs House clarified that at the said Custom House there was no uniform practice of mentioning the Customs Seal number in the Mate Receipt. It is contended by the Commissioner that the proof of export can be said to have been submitted by us only when the said clarification given by customs letter dated 30-4-08 was submitted. It is contended that the complete rebate application can be said to have been given only upon submission of the said letter dated 30-4-08 of Customs and since the rebate was paid within 3 months from the date of such submission, no interest is payable under Section 11BB. The said contentions raised in the revision application are totally misconceived and unsustainable in law as explained below. 5.3 The contention that if the custom seal number appearing in the shipping bill was not mentioned in the Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise in granting the rebate until clarification was obtained from JNPT Customs that there is no uniform practice of mentioning in the Bill of Lading/Mate Receipt the Customs Seal Number appearing in the Shipping Bill is totally unjustified and it cannot be said that complete documents of proof of export were given only when such clarification from customs was obtained. 5.5 The contentions raised in the revision application completely overlook the fact that the proof of export is the certification given by the customs officer on the ARE 1 which certifies the fact of shipment of the goods covered by the Shipping Bill in question and which also certifies the name of vessel and date of sailing of the vessel. Once the ARE-1 containing such certification of the officer of customs was filed with the rebate application the authority granting the rebate had no jurisdiction to question the proof of export and delay the grant of rebate by raising a totally extraneous an irrelevant objection that the customs seal number appearing in the Shipping Bill was not mentioned in the Bill of Lading/Mate Receipt. The authority granting the rebate had no jurisdiction to go beyond the certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper/respective Bank Realization Certificates for all the above exports. The party has been pleading that as per provisions of para 8.3 of C.B.E.C. Excise Manual on Supplementary Instructions, 2005, all the required documents were submitted alongwith rebate claims and the documents called by department and any other clarifications/documents were neither compulsory nor required to be submitted mandatorily. As such the exporter applicant claimed that he was entitled for interest under Section 11BB after the three months of the initial submissions of rebate claims under reference : TABLE S. No. RA F.No. Order-in- Appeal Nos. Order-in-Original Nos. Amount of Rebate claim Date of deficiency memo-cum-SCN to the exporter Date of reply received by Rebate sanctioning authority (1) (2) (3) (4) (5) (6) (7) 1. 195/187-189/10 SB/18/ LTU/ MUM/09,12-10-09 R002(205/07)Rebate (In) C.Ex Div.II-LKO/09/87 dated 13-1-09 1838/-147156/- 24-1-08/+ 13-3-08 12-5-08 2. 198/47/09 188-190 CE/LKO/08 16-11-08 22,23,980/- 13-3-08 12-5-08 3. 198/67/09 114-126 CE/LKO/08, 27-10-08 22,23,980/- 26-2-08/ 11-3-08 12-5-08 8.1 Before proceeding further, government fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely after the expiry of three months from the date of receipt of such application till the date of refund of such duty. Provided..... Explanation : Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise or Dy. Commissioner of Central Excise under sub-section (2) of Section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal as the case may be, the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section." As per these provisions interest is to be given after the completion of three months from the date of application for rebate/refund received in the divisional office. The C.B.E.C. has issued a Circular No. 670/61/2002-CX, dated 1-10-2002 wherein it has been held that : "Para 2 In this connection, Board would like to stress that the provisions of Section 11BB of the 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sub-section (2) of Section 11B to refund the amount to the applicant and that 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 of governed by proviso to Section 11BB, non-payment within three months from the date of 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." 8.4 Similarly, in the case of Commissioner Central Excise & Customs and S.T. Daman v. B Tax Ointment Manufacturing Co. [2010 (257) E.L.T. 487 (Guj.)] the Hon'ble Gujarat High Court has held as under : "Interest on Delayed Refund : Relevant date : Principal dispute on the basis of which claim for refund arose was in relation to classification of product which became final in 1997. Merely because the application for refund was rejected by the adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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