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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 ..... 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 rebate to the applicants. 4. The applicants further claimed interest on delayed payment in terms of Notification No. 22/95-C.E. (N.T dt. 29-5-1995, and No. 41/2000-C.E. (N.T.) dt. 12-5-2000. The applicant's request for interest was rejected vide Order-in-Original No. 16/R/CIR/2004 dt. 1-3-2004, observing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 to rebate claim with interest by way of consequential relief granted by ld. Commissioner (Appeals), vide Order-in- Appeal No. 1008-1009/CE/AppL/DC /FBD-I/D-II/2000 /6917 dt. 23-10-2001. (ii) That the Commissioner failed to appreciate that in the Revision Application filed against Order-in-Appeal dt. 23-10-2001, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 the provision of Section 11BB completely redundant since the claimant an meet the requirement of the Show Cause Notice only after issue of the same. 7. Sh. A.C. Jain, Consultant, alongwith Sh. Karan Nangia, MD, appeared for hearing held on 14-9-2005, and reiterated contents of their Revision Application. 8.1 Govt. has carefully g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'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 Tribunal was granted by the Supreme Court. The mere fact that Revenue appeal was decided by the Supreme Court on 7-4-2000, will not mean that they had become eligible for the refund of the duty only after the decision of the Supreme Court. We also observe that Section 11BB of the Central Excise Act, 1944, mandates the sanction of the refund within three m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions contained in Section 11BB of the Central Excise Act, 1944 and judgments of Hon'ble High Court/Tribunals mentioned in sub para 8.4 above, Govt. is of the considered opinion that applicants, are eligible for interest in terms Of Section 11BB of the Central Excise Act, 1944, as the applicants rebate claim was not disbursed within the prescribed time limit of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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