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TMI Blog2012 (12) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... st liability has to be adhered to. Interest liability arises when any duty ordered to be refunded under Section 11B(2) is not refunded within three months from the date of receipt of application under Section 11B(1). Since the said amendment has not put any restriction on the payment of interest in terms of Section 11BB, the argument of department that interest will arise after three months of amendment, does not hold good. - interest under Section 11BB becomes payable on the expiry of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and any explanation/reasons due to which the delay occurred, will not have any bearing upon the said legal position. Therefore, Government finds no infirmity in the impugned order-in-appeal and upholds the same. - Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... p;The observation of the Commissioner (Appeals-I), Kolkata does not appear to be legally correct as the same appear contrary to the provision as laid down in the Circular No. 670/61/2002-CX., dated 1-10-2002 which was issued against the backdrop of the sanctioning of refund beyond a period of three (3) months and non-payment of interest on such sanctioned either assigning any reason or giving vague and unconvincing reason. But in the instant case, the chronology of event proves that the Maritime Commissioner had no scope of giving blanket sanction to the claims without getting him satisfied from the orders/notifications/circulars issued by the Govt. of India specifically issued in respect of rebate claims. As, during the material period (when the rebate claim was filed) the assessee was availing benefit of Notification No. 56/2002-C.E., dated 14-11-2002 which inter alia provide for exemption to specified goods manufactured by units located in specified areas of Jammu and Kashmir equal to Duty of Excise and Additional Duty of Excise paid in cash by way of making refund of the said amount of duty paid to the manufacturer or the manufacturer at his own option may take credit of such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-11-2002 prior to Finance Bill, 2008 the original authority observed that the respondents become eligible for the rebate only after enactment of Finance Bill, 2008 on 10-5-2008. He held that the rebate was sanctioned within a month of enactment of the Finance Bill, 2008 hence there was no scope to allow interest on the sanctioned amount of rebate. Commissioner (Appeals) allowed the appeal of the respondents observing that it is well settled law that the refund due must be disbursed within three months from the date of submission of application. He also relied upon the C.B.E. & C. Circular No. 670/61/2002-CX, dated 1-10-2002 which provides that the provision of Section 11BB of Central Excise Act, 1944 are attracted automatically for any refund sanctioned from beyond three months and jurisdictional officers are not required or look for instruction from higher appellate authorities. Now the applicant department has filed this Revision Application on the grounds stated at para 4 above. 9. Government notes that the respondents have countered all the arguments of department and stated that they are entitled for interest in terms of Section 11BB and relied upon the various case law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or 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 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. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. 10. It is a well settled proposition of law that a fiscal legislation has to be construed strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 entitled to interest at such rate as may be fixed by the Central Government. The Supreme Court observed that the explanation to Section 11BB introduces a deeming fiction to the effect that where the order for refund is not made by the Assistant Commissioner but by an appellate authority or the Court, then for the purposes of the Section the order passed by the appellate authority or the Court shall be deemed to be an order under sub-section (2) of Section 11B. Having observed as aforesaid the Supreme Court also held that the explanation does not effect a postponement of the date from which interest becomes payable under Section 11BB and interest under the provision would become payable if on expiry of a period of thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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