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TMI Blog2015 (2) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 10.00 Lakhs already paid by them. Thus, once the Addl. Commissioner held that the appellant activity amounts to manufacture and confirmed the duty demand of ₹ 17.59 Lkhs against them and appropriated ₹ 10.00 Lakhs as payment towards their assessed duty liability, the ₹ 10.00 Lakhs earlier paid by them becomes the payment of duty by the appellant towards assessed duty liability and ceased to be an amount paid on ad-hoc basis. The refund claim of the amount of ₹ 10.00 Lakhs arose, when the Addl. Commissioner s order was set aside by the Commissioner (Appeals) vide order in appeal dated 20th November, 2003, who held that the appellant s activity does not amount to manufacture and set aside the Addl. Commissioner s o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 10.00 Lakhs on ad-hoc basis towards their duty liability. Subsequently, a show cause notice was issued for demand of duty of ₹ 17,56,355/- in respect of hydrogen gas cleared in retail cylinders and also for imposition of penalty on them. Since some stock of cylinders had been seized, the show cause notice also sought confiscation of the seized goods alongwith the the Truck from which the gas filled cylinders has been seized. The SCN was adjudicated by the Addl. Commissioner vide Order-in-Original dated 31.10.2002 by which he held that the appellants activity amounts to manufacture and accordingly, he confirmed the duty demand of ₹ 17,56,355/- and appropriated the amount of ₹ 10.00 Lakhs already paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the appellant, pleaded that the amount of ₹ 10.00 Lakhs whose refund was sought, had been paid by the appellant during investigation, that subsequently, when point of dispute was decided by the Commissioner (Appeals) in the appellant s favour and this amount became refundable alongwith interest on the same should also be payable, that in this regard, he relies upon the judgment of Hon ble Madras High Court in the case of CCE, Chennai II vs. Ucal Fuel System Ltd. reported in 2014 (306) ELT 26 (Mad.), also the judgment of this Tribunal in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs. Commissioner of Customs, Bangalore reported in 2009 (240) ELT 124 (Tri. Bang.) and that in view of the above submissions the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court s judgment in the case of Ranbaxy Laboratories Ltd. Vs. Union of India reported in 2011 (273) ELT 3 (SC) wherein the Apex Court held that interest on delayed refund is payable under section 11 BB of Central Excise Act, 1944 on the expiry of a period of 3 months from the date of receipt of refund application under section 11B (1) and not from the date of the order of refund or the appellate order allowing such refund and that in view of this, there is no infirmity in the impugned order. 6. We have considered the submissions from both the sides and perused the records. There is no dispute that the appellant on 26.11.1997 had paid an amount of ₹ 10.00 Lakhs under protest during investigation of the matter against them, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuance of an order-in-appeal passed by any appellate authority, the refund could not be granted suomotu. The claim in this regard is required to be filed by the assessee. The refund application was filed only on 06.07.2004. In terms of Section 11BB of the Central Excise Act, the interest liability of the Department for delay in payment of refund under Section 11B arises, only when there is delay beyond 3 months from the date of filing of the refund application. Since in this case refund application had been made on 06.07.2004, the interest liability would start from 07.10.2004 till the refund was paid to the appellant. The Commissioner (Appeals), however, has granted interest even from much earlier period from 20th February, 2004, against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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