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TMI Blog2014 (12) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Original passed by the M/s. Welspun India Limited, is the Respondent. 2. Brief facts of the case are that the facts of the case are that the respondent filed various rebate claims with the lower Authority The show cause notices were issued to the respondent for rejecting the rebate claims on the grounds that they have availed the benefit of exemption under Notification No. 39/2001-CE dated 31.07.2001 and availed the self re-credit of the amount of duty paid through PLA account in the succeeding months in terms of the provisions of Notification No. 65/2003-CE dated 06.08.2003. The respondent has availed the benefit of refund of duty paid through PLA by way of re-credit under section 5A of the Central Excise Act, 1944 (hereinafter referred to as the Act) and also claimed rebate of duty under Section 11 B of the Act on the same duty of the exported goods which appears to be double claim of benefit, as refund granted by way of self-credit makes the goods exempted and no rebate can be allowed on the exempted goods. Therefore all the rebate claims filed by the respondent were proposed for rejection under Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as the Rules) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Application Under section 35 EE of the Central Excise Act, 1944 on following grounds:- 4.1 The department preferred an appeal with the Hon'ble CESTAT, West Zonal Bench, Ahmedabad on the following grounds; i) It appears that the respondent authority has erred in holding that the assessee eligible for interest on rebate claims by relying upon the judgment dated 29.09.2011 passed by the Hon'ble High Court of Gujarat in the case of M/s Welspun Trading Ltd, Kutch. (ii) The Respondent authority has failed to appreciate the facts of the case when the rebate claims were lodged, circular of the department did not permit such claims to be sanctioned. Only when the law was settled by the Apex Court In case of Union of India V. Welspun Gujarat Stahl Rohren Ltd. by its order dated 23.07.2010, the eligible rebate was sanctioned to the said assessee. This was done within three months from the date of the Hon'ble Supreme Court's order. No interest was therefore, required to be paid as laid down in the decision of Division Bench of the Gujarat High Court in case of Padmanabh Silk Mills v. Union of India reported in 2006(193) ELT 536(Guj.). (iii) Further, the said judgment dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the afore-extracted provisions that Section 11BB of the Act comes into play only abler an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the court, then for purpose of this section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations of Hon'ble High Court in para 2,3 of said judgment are reproduced below: "2. Counsel appearing on behalf of the Petitioner submitted that the entitlement of the Respondent to a rebate was crystallized only on 6 December 2007 when the notice to show cause was dropped by the Commissioner of Central Excise. The rebate claims were sanctioned within a period of three months thereafter by the Assistant Commissioner (Rebate) and hence, no interest was payable. On the other hand, it has been urged on behalf of the respondent that the law has been settled by the judgment of the Supreme Court in Ranbaxy Laboratories Ltd. vs. Union of India and consequently no interference in the exercise of the jurisdiction under Article 226 of the Constitution is warranted. 3. The Supreme Court in its decision, in Ranbaxy (supra) considered the provisions of Section 11B and 11BB of the Central Excise Act, 1944 and held that Section 11BB lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under, sub-section (1) of Section 11B, then the applicant shall be entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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