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TMI Blog2011 (9) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners in these petitions had approached this Court by filing writ petition challenging such circular dated 8.12.2006. It is not in dispute that this Court in decision in case of Welspun Gujarat Stahl Rohren Ltd. v. Union of India reported in 2010(254) ELT 551(Guj.) held that such circular cannot take away the vested right of the exporters to claim rebate for exports made between 8.12.2006 till 17.9.2007. It is not in dispute that the rebate claim of the present petitioners were covered by the said decision of this Court. It is also not in dispute that decision of this Court in case of Welspun Gujarat Stahl Rohren Ltd. was challenged before the Apex Court and the appeal of the department was dismissed by judgement in case of Union of India v. Welspun Gujarat Stahl Rohren Ltd. reported in 2010 (256) ELT A161(SC). Decision of Apex Court was rendered on 23.7.2010. 4. After the decision of Apex Court, the adjudicating authority on the basis of decision of this Court in case of Welspun Gujarat Stahl Rohren Ltd.(supra), allowed the rebate claims of the petitioners by various orders passed in September, October and November 2010. While granting rebate as claimed by the petitioners h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to several decisions of this Court, in particular, he relied on the judgment in the case of Afrique Tradelinks Private Limited v. Union of India dated 3rd February 2004, reported in 2004 (2) GLR 667. Issue notice returnable on 14th July 2011. Direct service is permitted. 7. At the outset, learned counsel for the petitioners submitted that after this Court issued notice in these petitions, the petitioners to safeguard themselves against any lapse of period of limitation before the Commissioner(Appeals), filed appeals against the impugned orders. He however, submitted that the petitioners would be withdrawing such appeals and that such appeals were filed only by way of abundant caution to keep the right of appeal alive. 8. We have heard learned counsel for the parties for final disposal of the petitions. 9. Counsel for the petitioners submitted that the stand of the authority is wholly erroneous. He submitted that rebate claims were not sanctioned within three months from the date of filing such claim. In terms of Section 11BB of the Central Excise Act, therefore, the petitioners were entitled to interest upon completion of such period of three months. He relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought in by Section 88 of the Finance Act, 2008, the right vested in the petitioner No.1 Company to claim rebate in respect of export of goods after 8.12.2006 until 17.9.2007 continued and its validity or enforceability could not be affected. 12. The Apex Court upon an appeal by the Department upheld the decision of Gujarat High Court. It was only thereafter that rebate claims of the petitioners were sanctioned. When the Gujarat High Court declared that the circular would not affect the claim of rebate for exports made during a certain period, it would have effect right from the inception i.e. from the date of issuance of circular. Contention of the counsel for Revenue that the petitioners became entitled to rebate only when the High Court rendered the judgement and from the date when the Apex Court confirmed the decision of Gujarat High Court, cannot be accepted. The judgement of the High Court only declared a certain legal position. Supreme Court upheld such decision. In terms of Section 11BB of the Central Excise Act, the petitioners were entitled to interest on the delayed payment of rebate after period of three months of filing of such claims. 13.Section 11BB of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al standing counsel for the Central Government will have a bearing in so far as the question of implementation of the final order is concerned, that is,if the order of the Assistant/Deputy Commissioner is varied by the order of the Commissioner (Appeals), it is the order of the appellate authority which is required to be given effect to. The Section, however, does not provide that the interest would be paid from the date of the order of the appellate authority. Section 27A clearly provides that interest is to be paid to the applicant on the duty in question from the date immediately after the expiry of three months from the date of receipt of such application (for refund) till the date of refund of such duty. There is no dispute about the fact that the petitioners had made the original application for refund of excess customs duty (65% less 45%) on 31.10.1995 and, therefore, the petitioners have claimed interest for the period from 31.1.1996 onwards. Even in respect of the petitioners' claim for interest for delayed payment of refund amount of ₹ 14,83,303/ , the respondent authorities have paid the petitioners interest for the period from 31.1.1996 till the date of paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submission that the Petitioners should be relegated to pursuing a remedy of an appeal against the order of the Deputy Commissioner insofar as it declines the claim for interest. As a matter of fact, the Commissioner (Appeals) while remanding the proceedings had by an order dated 15 October 2010 directed the adjudicating authority to decide the refund claim along with interest under Section 11 BB . Section 11 BB postulates that if any duty ordered to be refunded under sub section (2) of Section 11 B to any applicant is not refunded within three months from the date of receipt of the application under sub section (1) of that section, the applicant shall be paid interest at the rate stipulated on such duty from the date immediately after the expiry of three months from the date of receipt of the application till the date of refund of such duty. The entitlement of the applicant, once the requisite conditions have been fulfilled follows as a matter of law and is a mandate of the statute. The record before the Court makes it clear that the application that was submitted by the Petitioners was together with the relevant documentary evidence. The finding of the adjudicating authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dated 30.7.1999 we find that it cannot be said that the application filed by the petitioner for refund was found to be so incomplete that it would not be termed as an application at all. The revisional authority in the order impugned has observed that the appellate authority found that a certificate from the authority was found necessary for establishing correlation by the appellate authority. Perusal of the order of the appellate authority does not show that production of the certificate was necessary for establishing correlation. Correlation was to be established by looking at the chassis number in the duty paying document executed at the time of payment of duty on the chassis with engine and the chassis number mentioned in the duty paying document executed at the time of payment of duty on the bus. The documents evidencing payment of duty at both the occasions were already available on record because it is only on the basis of those two documents that the Assistant Commissioner had recorded finding that the duty has been paid on both the occasions. It is, thus, clear that the correlation could be established only on the basis of those two documents which were on record. A cert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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