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TMI Blog2014 (8) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... e months from the date of the receipt of the application. The explanation after the proviso to Section 11BB introduces a deeming fiction, namely, that where an order for refund of duty is not made by Assistant Commissioner of Central Excise but by the appellate authority or by the Court then for the purpose of this section the order made by such higher appellate authority or by the Court shall be deemed to be an order passed under sub-section (2) of Section 11B of the Act. Interest becomes payable on the expiry of the period of three months from the date of the receipt of the application for refund under sub-section (1) of Section 11B of the Act - Following decision of Ranbaxy Laboratories Ltd. Vs. Union of India [2011 (10) TMI 16 - Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and permitted the respondent to take the credit but reduced the amount by ₹ 27,003/- on the ground that the refund claimed was filed after a period of more than one year and, therefore, not entitled for refund as contemplated under Rule 173-L(1) of the Rules of 1944. The respondent, being aggrieved, filed an appeal, which was rejected and, being aggrieved, the respondent filed a second appeal before the Custom Excise and Service Tax Appellate Tribunal, who set aside the order of the adjudicating authority as well as the appellate order and allowed the appeal with consequential relief. The department, being aggrieved, has filed the present appeal under Section 35G of the Central Excise Act, 1944, which has been admitted on the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27003/- in respect of refund of duty with regard to 58 colour picture tubes under Rule 173-L(1)(i) of the Rules. The reasons is not far to see. The matter had been decided by the appellate authority in the first round of litigation wherein the appellate authority held that the respondent was entitled for refund along with interest. In the second round of litigation only the amount of refund along with interest was to be calculated. It was not open to the adjudicating authority to reassess or re-quantify the amount of duty that was to be refunded. The appellate order dated 22nd October, 2003 had become final interse between the parties and it was not open to the adjudicating authority to digress from that order and pass a fresh order holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t apply where any duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty 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 and interest, if any, paid on such duty of excise as determined by the 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 am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4)................................................................. (5) ................................................................ Section 11BB, the pivotal provision, reads thus: 11BB. Interest on delayed 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 per cent per annum as is for the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted under sub-section (1) of Section 11B then interest would be payable at such rate as may be fixed by the Central Government on the expiry of the period of three months from the date of the receipt of the application. The explanation after the proviso to Section 11BB introduces a deeming fiction, namely, that where an order for refund of duty is not made by Assistant Commissioner of Central Excise but by the appellate authority or by the Court then for the purpose of this section the order made by such higher appellate authority or by the Court shall be deemed to be an order passed under sub-section (2) of Section 11B of the Act. From the aforesaid explanation, it is apparently clear that interest becomes payable on the expiry of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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