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TMI Blog2016 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... f the erstwhile Central Excise Rules, 1944 - Held that: - In appeal No. E/541/2007, the lower appellate authority has set aside order of original authority and has held that appellant are eligible for refund of ₹ 54,30,017.82/- with interest. In appeal E/817/2009 in the second ground of litigation, lower appellate authority has once again held that appellants are eligible for said amount of interest. It is seen that in both orders the appellate authorities have analysed the matter in great detail and only there after arrived at the conclusion of sanction of refund and interest. We do not find any infirmities in these impugned orders. Hence no merit found in these appeals. Interest on delayed refund - Department has argued that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule to the Central Excise Tariff Act, 1985 upon finalisation of Provisional Assessment vide Memorandum OC No 475/98 dated 27-08-1998. They also filed another claim dated 09.09.1998 for refund of pre-deposit amount of ₹ 23 Lakh. The original adjudicating authority vide Order-in-Original 100(R)/2005-06 dated 28 06.2005, appropriated ₹ 9,59,011 out of the pre-deposit amount of ₹ 10 Lakh; sanctioned refund of sanctioned refund of out of ₹ 54,30,017 and credited to the Consumer Welfare Fund and rejected the refund claim of ₹ 13 Lakh for the reason that it is included in the refund claim for ₹ 54,30,017. b. Aggrieved by the said Order, assessee filed an appeal before the Commissioner (Appeals) Hyderabad, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,89,028/ordered to be credited to the Consumer Welfare Fund by the Assistant Commissioner vide Order-in-Original no 100(R)/2005-06 dated 28-06-2005, had erred in concluding that the Assessee was eligible for refund of ₹ 54,30,017.82. d. However, in the mean time, consequent to the Order-in-Appeal No.12/2007 (H-IV) CE dated 12.03.2007 the original authority sanctioned a refund amount of ₹ 53,89,028/- (Rs.15,00,000 in PLA and ₹ 38,89,028 as credit in CENVAT credit account) to the assessee vide Order-in-Original no.36-R/2007-08 dated 10.08.2007, however, the request for interest on the delayed refund was rejected. Aggrieved over the rejection of interest and sanctioning of ₹ 38,89,028/- as credit in their CENVAT cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide Order-in-appeal No. 47/2009 (H-IV) CE dated 10.11.2009 allowed the appeal on the following grounds. i) Commissioner (Appeals) observed that the lower authority has sanctioned the interest of ₹ 32, 16,921/- on ₹ 44,30,018/- and rejected the interest on ₹ 10,00,000/- paid by them towards pre-deposit holding that Section 11BB of the Central Excise Act, 1944 provides for payment of interest only on duty and not on pre-deposit. 2. Department is in appeal against the following orders of Commissioner (Appeals): OIA No. 12/2007 dated 12.03.2007 [Appeal E 541/2007] OIA No. 19/2009 dated 20.05.2009 [Appeal E/817/2009] OIA No.47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund granted under Rule 9B ibid for the relevant period is not correct. 4. The Ld AR reiterated the grounds of appeal 5. On behalf of respondent the Ld Counsel Sri. V.J. Shankaram submitted that the impugned orders are not correct in law and department orders are liable to be dismissed for the following reasons.. a. The appellants (Revenue) have not challenged the assessment made by the Superintendent of Central Excise; which clearly showed the net excess duty paid by respondents. b. The assessments were provisional. These provisional assessments were finalized on 27-8-98 During that period and upto 25-6-1999, there was no requirement in the Statute that the claimant should show proof that burden of duty was not passed on to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Commissioner V/s allied Photographics India Limited reported in 2004 (166) ELT 3 (SC). 6. We heard both sides. 7. In appeal No. E/541/2007 , the lower appellate authority has set aside order of original authority and has held that appellant are eligible for refund of ₹ 54,30,017.82/- with interest. In appeal E/817/2009 in the second ground of litigation, lower appellate authority has once again held that appellants are eligible for said amount of interest. It is seen that in both orders the appellate authorities have analysed the matter in great detail and only there after arrived at the conclusion of sanction of refund and interest. We do not find any infirmities in these impugned orders. Hence no merit found in these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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