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TMI Blog2017 (4) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner company lodged 102 claims for rebate/refund. By an order-in-original dated 13.01.2012, the Assistant Commissioner of Central Excise (hereinafter referred to as "the adjudicating authority") rejected 87 of the claims. By an order-in-original dated 22.08.2012, the adjudicating authority rejected 15 rebate claims. The petitioners went in appeal against the rejection of rebate claims before the Commissioner (Appeals), Ahmedabad, who allowed the rebate claims and set aside the adjudication orders with consequential relief. The Central Excise Department filed revision applications before the Joint Secretary, Government of India, New Delhi against the order of the Commissioner (Appeals). The revisionary authority remitted the case back for fresh decision, but with a direction that fresh decision on rebate claims should be taken after the outcome of an investigation being conducted by the DGCEI authorities in some other case and after the final decision in one another case pending before the Commissioner of Central Excise, Vapi. Since the Assistant Commissioner of Central Excise did not take up the rebate claims for decision, the petitioners approached this court by way of a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court was invited to clause (A) of the Explanation to section 11B of the Act, to point out that "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India and submitted that rebate of duty is also a refund. Reference was made to section 11BB of the Act, which makes provision for "Interest on delayed refunds", to point out that under sub-section (1) thereof, 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, interest on such duty is required to be paid to the applicant as notified by the Central Government 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. It was submitted that therefore, interest is required to be paid after the expiry of three months from the date of receipt of the application and that the date of the order which may be made by the adjudicating authority, is not relevant for this purpose. Reference was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the rebate claim, that is, from 04.04.2012 till the date of payment viz., 12.08.2016, namely for a period of almost four years. It was submitted that the period as mentioned in the calculation sheet at Annexure F to the petition, is the period when the rebate claim was under scrutiny for various reasons by the DGCEI and the DGCEI had booked the case and was investigating the matter. Therefore, the said claim could not be processed as the matter was under investigation. It was submitted that in terms of the provisions of section 11BB of the Act, interest on delayed refund is to be paid by the Central Government when the same is not refunded within a period of three months from the date of receipt of the application under sub-section (1) of section 11B of the Act. However, the explanation given along with section 11BB of the Act specifically contemplates that where any order of refund is made by the Commissioner (Appeals), the Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B of the Act, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner (Appeals), Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of Section 11-B, 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." 12. It is manifest from the afore-extracted provisions that Section 11-BB of the Act comes into play only after an order for refund has been made under Section 11-B of the Act. Section 11-BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11-B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below the proviso to Section 11-BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or the Deputy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months of filing - Regarding I am directed to invite your attention to provisions of Section 11-BB of the Central Excise Act, 1944 that wherever the refund/rebate claim is sanctioned beyond the prescribed period of three months of filing of the claim, the interest thereon shall be paid to the applicant at the notified rate. The Board has been receiving a large number of representations from the claimants to say that interest due to them on sanction of refund/rebate claims beyond a period of three months has not been granted by Central excise formations. On perusal of the reports received from field formations on such representations, it has been observed that in majority of the cases, no reason is cited. Wherever reasons are given, these are found to be very vague and unconvincing. In one case of consequential refund, the jurisdictional Central Excise Officers had taken the view that since the Tribunal had in its order not directed for payment of interest, no interest needs to be paid. 2. In this connection, the Board would like to stress that the provisions of Section 11-BB of the Central Excise Act, 1944 are attracted automatically for any refund sanctioned beyond a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners are not entitled to interest under section 11BB of the Act, cannot be countenanced even for a moment. In the facts of the present case, initially the respondents had kept the rebate claims of the petitioners in abeyance, due to which the petitioners were constrained to approach this court and with a view to obviate any further delay in deciding the application, in the light of the observations made in its judgment and order dated 18.02.2016 made in the above referred writ petitions, this court had directed the concerned authority to decide the rebate applications within a period of four months from the date of receipt of the said order. When the statute clearly provides that interest shall be payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of section 11BB of the Act, merely because this court had stipulated the period within which the concerned respondent should decide the application, the same would not operate in favour of the respondents and against the petitioner and curtail the statutory period prescribed under section 11BB of the Act. 9. Moreover, it is settled legal position that an interpretation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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