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TMI Blog2015 (11) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... below: S.No. Amount of refund claim (Rs.) Date of submission of refund claim Date of sanction of refund claim Date of payment of refund amount No. of days of delayed payment after deducting 90 days Amount of interest calculated @ 15% per annum(Rs.) 1 2,78,604.54 25.07.94 03.04.01 03.04.01 2265 2,59,331.41 2 11,25,758.53 25.07.94 03.04.01 03.04.01 2265 10,47,880.71 3 14,85,860.37 29.11.94 03.04.01 03.04.01 2138 13,05,521.70 4 10,56,610.00 28.04.95 03.04.01 09.08.02 2559 11,15,519.36 TOTAL 37,28,253.18 Rounded to 37,28,253/- 3. The said claim was rejected by the Assistant Commissioner of Central Excise, Dhanbad by an order dated 07.11.2007. Aggrieved by the said order, the appellant preferred an appeal before the ld. Commissioner(Appeals), Ranchi, who has upheld the order of the adjudicating authority and dismissed the appeal filed by the appellant. Hence, the present appeal. 4. The ld.Advocate Shri Kartik Kurmi for the appellant submits that there is no dispute on the eligibility of refund which arose, on account of export of goods, in accordance with Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the refund. 6. The ld.AR for the Revenue reiterated the findings of the ld. Commissioner(Appeals). He has requested to furnish a written submission in support of his argument, however the same has not been filed till date. 7. I have carefully considered the submissions and perused the records. There is no dispute about eligibility of refund as the department has already sanctioned and refunded the amount to the appellant. The dispute centers around the claim of interest for delayed period of the refund. It is the case of the appellant that even though they were eligible to refund of CENVAT Credit, the refund was not sanctioned to them within three months from the date of incorporation of section 11BB in the Central Excise Act, 1944 ( i.e. 26.05.1995), hence they are eligible to the interest amount for the delayed period from 26th Aug.1995. I find that the Revenue has rejected the interest on the delayed refund mainly on the following counts: Firstly, It is the contention of the Revenue that interest on MODVAT credit refund is out of the purview of section 11BB of Central Excise Act,1944; Secondly, the said provisions of section 11BB is not applicable to refunds filed prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made provision for the manner of utilisation of inputs and credit allowed in respect of duty paid thereon. Sub-rule (13) of rule 57F made provision for refund of accumulated credit in case where for any reason it was not possible to adjust the same in the manner provided under the said sub-rule. Sub-rule (13) of Rule 57F of the said Rules is more or less in pari materia to the provisions of Rule 5 of the Cenvat Credit Rules, 2002/2004. Thus, the instructions issued by the Central Government under the aforesaid Circular would also be applicable to refunds under rule 5 of the Rules, which instructions are binding on the revenue 8. On Appeal against the above judgment by the Revenue, the same was rejected by the Honble Supreme Court reported as Commissioner Vs. Reliance Industries Ltd. 2011 (274) ELT A110(SC). Thus, provisions of Sec.11BB of CEA,1944 is applicable to Modvat Credit Refunds under Rule 57F of erstwhile Central Excise Rules,1944. 9. The Applicability of Sec.11BB to the refunds filed prior to incorporation of the said provision in the Central Excise Act,1944 has been addressed by the Honble Rajastan High Court in J.K.Cement Works case(supra) as follows: "21. The per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest on belated payment of interest, makes it clear that relevant date for the purpose of determination the liability to pay interest is not the determination under sub-section (2) of Section 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund but the relevant date is to be determined with reference to date of application laying claim to refund. The non-payment of refund to the applicant claimant within three months from the date of such application or in the case governed by proviso to Section 11BB, non-payment within three months from the date of the commencement of Section 11BB brings in the starting point of liability to pay interest, notwithstanding the date on which decision has been rendered by the competent authority as to whether the amount is to be transferred to Welfare Fund or to be paid to the applicant." 11. Finally, allowing the interest under Sec.11BB for the refund application filed prior to 26.05.1995, even though the Order of the CEGAT was passed on 15.12.2002, their Lordhsips have held as: "39. Viewed from this point, in this matter it is apparent that notwithstanding the order under sub-section (2) of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Vs. J.K.Cement Works 2005 (179) ELTA150(SC). Also, the principle laid in J.K.Cement Works case that date of application for refund would be the relevant date for computing three months to allow interest under Sec.11BB rather than the Order date as referred to under sub. Sec.(2) of Sec.11B, has been endorsed by the Honble Supreme Court in Ranbaxy Laboratories Ltd's case(supra) observing: "9. It is manifest from the afore-extracted provisions that Section 11BB of the Act comes into play only after 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 Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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