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TMI Blog2016 (12) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... 682/73/2002-CX dated 19/02/02 it has been opined that refunds under Notification No. 33/99-CE dated 8/7/1999 are not refunds under Section 11B of the Central Excise Act, 1944. However, Jurisdictional Guwahati High Court on the same issue while deciding the case Amalgamated Plantations (P) Ltd. Vs. Union of India [2013 (11) TMI 589 - GAUHATI HIGH COURT] held that Section 11B of the Central Excise Act, 1944 does not exclude claim of refund made in terms of the notification dated 8-7-1999. Petitioners would, therefore, be entitled to interest under Section 11BB of the Central Excise Act, 1944 on the excise duty refunded to them - assessee entitiled to interest. Appeal dismissed - decided against Revenue. - Excise Appeal No.E/725/11 - FINAL ORDER NO.FO/A/75902/16 - Dated:- 11-8-2016 - SHRI H.K. THAKUR, TECHNICAL MEMBER AND SHRI P.K. CHOUDHARY, JUDICIAL MEMBER Sri S. Mukhopadhyay, Supdt.(A.R.), FOR APPELLANT(S) Sri R.G. Sarda, C.A., FOR THE RESPONDENT(S) Per SHRI H.K. THAKUR This appeal has been filed by the Revenue against Order-in-Appeal No. 28/GHY/CE(A)/GHY/11 dated 11/05/2011 passed by the Commissioner, Customs Central Excise (Appeals), Guwahati) as first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 33/99-CE dated 8/7/1999 is not admissible for which premises-II should have been registered. That for issue of fresh Registration incorporating the change in address, Respondent was required to surrender the original registration certificate to the Range Supdt. as per CBEC Circular No. 662/53/2002-CX dated 17/9/2002 (para 5.9). That appellant did not surrender the earlier RC and accordingly no new registration certificate could be issued even if party has given intimation to the Jurisdictional Range Officer about shifting of the unit to the new address in the month of January, 2003. Learned A.R. made the bench go through para 5.9 of CBEC Circular dated-17/9/2000. (iii) That no interest under Section 11BB on refund under Notification No. 33/99-CE is admissible to the Respondent as provision of Section 11B of the Central Excise Act, 1944 are not applicable to the refunds under Notification No. 33/99-CE. That as per CBEC Circular Nos. 84/19/2006-CX dated 8/12/2006 and 682/73/2002-CX dated 19/2/2002 also no interest under Section 11BB is admissible as provisions of Section 11B are not applicable to the refunds under Notification No. 33/99-CE . 4. Shri R.G. Sarda (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44,16,000/-. The offices of HQ Anti Evasion searched the premises-II on 24/5/2003 and resumed certain records and it was followed by initiating the proceedings for revocation of Registration Certificate and rejection of refund claim under Notification No. 33/99-CE dated 8/7/1999. Respondent was asked to surrender the Registration Certificate (RC) of premises-I by a letter dated 8/8/2003. The matter reached CESTAT when the case was remanded, under order No. A 1537-1538/KOL/07 dated 24/7/2007, to the Adjudicating authority. In the remand proceedings Order-in-Original No. 11/CEX/TECH-I/ACG/2009 dated 10/9/2009 was passed by AC,CE, Bhangagarh, Guwahati as Adjudicating authority. In the Order-in-Original dated 10/9/2009 registration certificate No. ABPPD 7925 HXM001 was resorted and amendment allowed with respect to premises-II but refund claim and benefit of Notification No. 33/99-CEdated 8/7/1999 was denied to the Respondent. Both the Revenue and the Respondent filed appeals before the first appellate authority and first appellate authority formulated following four issues to be decided as framed in para 8 of the Order-in-Appeal dated 11/5/2011: i) Whether the RC was lying with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular dated 17/9/2002 also prescribes that in case the application is not in order or is incomplete the nominated officer will advise the Registrant of the deficiencies and ensure its completion before it is sent for being fed into SACER. As per para 5.4 (iv) Registration Certificate will be delivered to an assesse on the spot. Para 5.4 (v) further prescribes as follows: vi) In the event it is not possible to hand over the Registration Certificate immediately at the time of the receipt of the Application for any reason such as either Registrant or Deputy/Assistant Commissioner is not available or there is a technical difficulty, then the acknowledgement of the Application will be given to the assesse on the spot. Later the Registration Certificate shall either be sent to the assesse by Registered Post or handed over personally to him next working day, as per his choice to be indicated upon the Application Form. 6.1 Post registration verification of the premises for which Registration is sought for is required to be done within 5 working days of the receipt of duplicate copy of Application for Registration alongwith a copy of the Registration Certificate (RC). In para 5.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 (296) ELT 13 (Guw.)] held as follows: 27. Section 11B of the Central Excise Act, 1944 deals with claim for refund of duty. It provides that any person claiming refund of any duty of excise may make an application with relevant documents and evidence for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of six months from the relevant date. Under sub-section (2) of Section 11B, if on receipt of any such application, the Assistant Commissioner is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly. 28. Under Section 11BB of the Central Excise Act, 1944, if any duty ordered to be refunded under sub-section (2) of Section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate which may be fixed by the Central Board of Excise and Customs on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. 29. From a conjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-1999. Petitioners would, therefore, be entitled to interest under Section 11BB of the Central Excise Act, 1944 on the excise duty refunded to them. The jurisdictional excise officers shall now determine the interest amount payable to the petitioners for the relevant periods. The amounts found due shall be paid to the petitioners within three months from today. 7.1 Reliance is placed by the Revenue on Apex Court s case law Commissioner of Income Tax, Gujarat Vs. Gujrat Flours Chemicals [2013 (298) ELT 433 (S.C.)] to the effect that only statutory interest can be claimed by an assesse. It is observed that the relied upon case law pertain to Income Tax Act 1961. Secondly, jurisdictional High Court has decided the payment of interest on refund under the same Notification No. 33/99-CE against which no stay has been obtained by the department. This bench is left with no option but to respectfully follow the ratio laid by jurisdictional Guwahati High Court on this account and reject the ground of non payment of interest taken by the department in this appeal. 8. In view of the above observations and settled proposition of law appeal filed by the Revenue is dismissed. (Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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