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TMI Blog2017 (6) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... favor of appellant. - Appeal No. E/60294-60299/2017 - Final Order No. 60987-60992 / 2017 - Dated:- 25-5-2017 - Mr. Ashok Jindal, Member (Judicial) Shri. Ramesh Kumar Sharma, Consultant- for the appellant Shr. Harvinder Singh, AR- for the respondent ORDER Per Ashok Jindal The appellant is in appeal against the impugned orders wherein interest on delayed refund has been denied to the appellant. 2. The facts of the case are that the appellant filed various refund claims before the Adjudicating Authority and admittedly all the refund claims were sanctioned to the appellant beyond a period of three months of the date of filing the refund claims. It is fact on record that the appellants have given undertaking before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant has undertaken not to claim interest, the assessee cannot be debarred to claim interest in terms of Section 11BB of the Act. 4. On the other hand, the Ld. AR supported the impugned orders. 5. Heard both sides and considered the submissions. 6. In this case, the short issue before me is that whether the appellant is required to file an application to claim interest on delayed refund in terms of Section 11BB of the Central Excise Act, 1944 or not 7. The said issue has been examined by the Hon ble High Court of Allahabad in the case of Siddhant Chemicals (Supra) wherein the Hon ble High Court of Allahabad has been observed as under: 9. Section 11BB of the Act reads as follows : Interest on delay refunds. - If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid sub-section (2) for the purposes of this section. 10. A bare perusal of Section 11BB of the Act, reveals that the payment of interest is not depended on the claim by the party. It is automatic. In case, if refund is not paid within three months from the date of receipt of the application, the authority concerned is under obligation to pay the interest. In Section 11BB of the Act the word used is there shall be paid to the applicant. It means that it is not discretionary and has to pay. The payment of interest is statutory and automatically. The waiver of the interest by the party has no relevance and on the said ground payment of interest cannot be denied. 11. Circular No. 670/61/2002-CX, dated 1-10-2002 reads as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant 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 Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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