9911796707
TMI Blog2017 (2) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... laim to be ineligible and that ineligibility cannot be transformed into eligibility by the Assistant Commissioner. The conclusion is that such an order does not reinstate the claims of the appellant to be an eligible claim for refund. A tax collected without authority of law retains its sanctity until illegality of collection is decided upon by lawfully constituted authority and brought to fruition by sanction of the amount - Appellant has no vicarious standing to act on behalf of the Fund and for claiming that, as the Fund is not entitled to interest, the Central Government has to be deprived of such amount. The appellant is not entitled to refund and, with that, its claim on time value of that money does not exist. Appeal dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31st October 1981 and for the period from 1st November 1981 to 31st October 1984 for a total amount of ` 1,25,34,988.97 which was rejected and the writ petition before the Hon ble High Court set aside the rejection following which the amount was paid on 12th July 1990. On appeal of Revenue, a Division Bench of the Hon ble High Court, by its order of 3rd March 1993, found in favour of Revenue, in the light of amendment to section 11B of Central Excise Act, 1944, and directed the manufacturer to deposit the amount with the court and which, on 11th August 1993, was permitted to be withdrawn by department which, after disposal of writ petition filed by the appellant against such withdrawal, was effected on 13th October 1993. The special lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, taking note of letter of appellant dated 2nd May 2005 claiming interest under section 11BB of Central Excise Act, 1944 held that the appellant was not entitled to interest on an amount transferred to the Fund. 4. Appellant went before Commissioner of Central Excise (Appeals), Mumbai claiming entitlement to interest from the date of withdrawal of amount from High Court as the amount was retained by the department till the order of the original authority. It was contended that the Fund was not entitled to the interest and the adjudicating authority be directed to produce documentary evidence of transfer and seeking a direction to original authority to pay to the appellant ` 1,64,93,425 as interest. 5. The first appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as refund, to the Consumer Welfare Fund. The original authority did pass the order of transfer of ` 1,25,34,988.97 to the Fund and the first appellate authority did observe that it was not open to the original authority to transfer the amount to the Fund when the Hon ble Supreme Court has ruled that this amount could not have been taken up for sanction as it was not claimed within the period prescribed in section 11B while disposing off appeal of Revenue against the order of the Tribunal allowing the refund with interest. It is also not in doubt that it is Revenue that has been deprived of the amount by this transfer but, for reasons best known, the order was not challenged. Appellant could not have any grievance as their eligibility for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion is that such an order does not reinstate the claims of the appellant to be an eligible claim for refund. That has been extinguished by the Hon ble Supreme Court and, short of divinity, there is no executive power that can administer the kiss of life. Without such reinstatement, the appellant ceases to be the applicant that it claims to be in the grounds of appeal. It is only an applicant that is endowed with the right to claim interest. 10. The provisions of section 11BB of Central Excise Act, 1944, viz., Section 11BB. Interest on delayed refunds. 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-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund. Hence, three conditions are to be fulfilled for section 11BB to come into effect: sanction of refund to applicant and refund order not having been passed for three months since its application. While the last condition may be said to exist, it must also be made clear that such a state cannot be said to be in existence except where the refund is sanctioned to applicant. By no stretch can the appellant claim that the amount has been ordered to be refunded to it. The entitlement to interest, therefore, does not devolve on the appellant. 11. Even if it is assumed that the transfer to the Fund was correct, it is moot whether any interest liability will devolve on the Central Government for any delay in doing so. That it took more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
