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TMI Blog2007 (2) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 nos. of refrigerated vans exported by them through AR4 No. 2 3/BPL/99-2000 both dt. 3-12-1999, and AR4, No. 4/BPL/2000-2001 dt. 14-11-2000. The applicant's claim for rebate, were rejected on the ground that the applicant exported refrigerated vans which is also evident from the drawback claim filed under Tariff Heading No. 87.04. The applicant's claim for rebate were rejected for contravention of Rule 12(3) of the Central Excise Rules, 1944, r/w Rule 12(1)(a) of the rules Order-in-Original in sub-para 2.1 above. 2.3 Against these orders the applicants filed appeals before the Commissioner of Central Excise (Appeals), The Commissioner (Appeals), set aside the above Orders on the grounds that subject rebate claims were filed by the applicant for the Central Excise duty elements and the drawback were given for the customs duty element as per the All Industry Rate fixed by the Govt. 2.4 Against the above Order-in-Appeal the Revenue filed Revision Application No. 198/18-19/2003-RA which was disposed of vide Govt's Order No. 2 3/2003 dt. 24-1-2003. 3. In compliance of above order the original authority vide Order-in- Original No. 39/2003(R-13), dt. 4-5-2003, sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finally the disclaimer certificate dt. 14-4-2003, from the manufacturer Tata Engineering and Locomotive Jamshedpur from where goods were cleared on payment of duty was submitted under their letter dt. 22-4-2003, and the refund was sanctioned on 9-5-2003, i.e., well within three months of submission of the required certificate. There was thus no delay. As regards, the case law in the matter of Jayantha Glass Ltd it is observed that while in the said case claim was filed not incomplete and involved the principle issue of time bar, in the present case the condition of submissions of documents imposed in Revision were complied with on 22-4-2003, only and the claim had been sanctioned on 9-5-2003. Further since the condition was complied on 22-4-2003, only. The claim for interest would after three months thereof, ratio of tribunal decision in Shakti Enterprises is thus not applicable." 6. In the Revision Application the applicant made following main pleadings :- (i) That in this case a clear findings has been written in impugned order that the party had submitted the Disclaimer certificates along- with applications for refund claims. This being the fact, the appellant was entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the same efficacy in law as the disclaimer certificates issued by Telco Jamshedpur in respect of the exported Truck Chassis. (vii) That the Commissioner ought to have borne in mind that the dictum of the Revisionary Authority of the Govt. of India in its decision in the case of Seema Silk and Sarees reported as 1999 (108) E.L.T. 853 (GOI.) (viii) That in this case, since the appellant was all throughout claiming payment of rebate with interest, the Deptt. sought thought of a mechanism to stall non-payment of interest. Hence the Deptt. certificate from Telco Jamshedpur. The requirement of disclaimer certificate from Telco Jamshedpur was done to set up a false and frivolous plea that the appellant had not completed the documentation till 22-4-2003, when new disclaimer certificate from Telco Jamshedpur were submitted by the appellant. (ix) That it has already been held by the CESTAT, Northern Branch in its Final Order No. A/189/2004-NB(C), dt. 13-2-2004, 2004 (167) E.L.T. 346, that late submission of documents in support of any claim alleged by issue of a Show Cause Notice proposing rejection of claim after the expiry of the interest free period of three months will make th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere called for nor any deficiency memo was issued to the applicants in this regard. The Commissioner (Appeals), however, found the impugned Order-in-Appeal, not maintainable and accordingly set aside the Order-in-Original and consequently the applicants were found eligible for rebate. 8.4 Govt. has also gone through the cited judgments of Hon'ble Tribunal in case of British Health Products (India) Ltd. v. Commissioner of Central Excise, Jaipur, 2004 (167) E.L.T. 346 (Tri.-Del), wherein, in similar facts and circumstances it is held that the party is entitled for interest u/s 11BB of the Central Excise Act, 1944, as the rebate claims is not sanctioned within three months of receipt of the claim Govt. extracts para 4 of the judgment as under :- "4 We have considered the submissions of both, the sides. It is not in dispute that the refund claim was filed by the appellants on 20th July, 1999 immediately after the appeal filed by them was allowed by the Tribunal. No doubt the Revenue had preferred the appeal against the Tribunal's order allowing their appeal in the Hon'ble Supreme Court. However, nothing has been brought on record that any stay of the final order of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e,f. expiry of three months of the date of receipt of application required to be made under Section 11B(1). The rate of interest is to be prescribed by the Board and the interest is payable w.e.f. from the date of commending from the expiry of three months from the date of receipt of such application till the refund of such duty." 8.5 Govt. further notes that in terms of Section 11BB of the Central Excise Act, 1944 the rebate claims are required to be refunded within three months from the date of receipt of application under sub-section (1) of Section 11B and in case it is not paid within the prescribed time limit, the interest as prescribed by the Central Govt. is to be paid. Explanation to Section 11BB says that where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal, or any court against an order of the Asst. Commissioner of Central Excise or Dy. Commissioner of Central Excise, under sub-section (2) of Section 11B, the order passed by the Commissioner (Appeals), appellate Tribunal, or as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section." 9. In view of above pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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