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TMI Blog2017 (7) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... is no issue of rate of duty or interpretation of N/N. 56/2002-CE is involved in the present case - the refund become payable only by virtue of Section 88 of the Finance Act, 2008 by which Rule 18 was amended before that there was no occasion to grant the rebate to the appellant, therefore there is no delay in sanction of the refund. If there is a delay in sanction of refund/rebate in terms of Section 11BB, the interest is payable to the claimant after expiry of three months from the date of filing the refund application - In the present case the refund application was filed during the period February and April 2006 whereas the refund was sanctioned in June 2009. Therefore there is a delay after expiry of three months from the date of filing application, accordingly the appellant is entitled for the interest in terms of Section 11BB. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... for NCCD, AED and Education Cess. The Assistant Commissioner (Rebate) Central Excise, Mumbai allowed the claim vide order-in-original No.14/R/2010 dt. 22.3.2010 and granted the interest of ₹ 13,67,445/- to the appellant under Section 11BB of the Central Excise Act, 1944 for the period of delay. However, no show cause notice has been issued to the appellant for recovery of the said interest paid to the appellant. Being aggrieved by the order-in-original granting interest, the Revenue filed appeal before the Commissioner (Appeals), who vide the impugned order set aside the order passed by the Assistant Commissioner and allow the appeal of the department on the ground that rebate claims were sanctioned in the appellants favour on the basis of retrospective amendment of Rule 18 vide Section 87 of the Finance Act, 2008 and therefore benefit of rebate of NCCD, AED and Education Cess became admissible to the appellant. Therefore there was no delay in sanctioning rebate claim of the above excise duties. The Commissioner (Appeals) relied upon this Tribunal decision in the case of Commissioner of Central Excise, Delhi Vs. Premier Industries Ltd. - 2009 (248) ELT 833 (Tri. Del.). Being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 516 (Tri.-LB) that interest is payable for the period commencing after 3 months of the date of making the application of the claim which was ultimately paid by the department irrespective of the reasons for which the claim for refund was not paid within three months from the date of receipt of application. She submits that even if the retrospective amendment made under Section 87 of the Finance Act 2008 is considered, the amendment of Rule 18 of Central Excise Rules, 2002 was deemed to be always have been for all purpose as voluntarily and effectively taken and done as if the said amendment had been inforce at all material times. Accordingly, the amended Rule 18 become operational right from the date from when the retrospective amendment is effective. Therefore consequently the refund was payable even prior to the amendment of Rule 18, hence there is a delay. As regard maintainability of the appeal before this Tribunal in case of interest on rebate. She placed reliance on the decision of this Tribunal in the case of Madhura Coats Pvt. Ltd. Vs. Commissioner of Central Excise, Madurai - 2012 (284) E.L.T. 235 (Tri.-Chennai). She also placed reliance on the following decisions as regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is regard, I find that this very same issue of jurisdiction in respect of interest on rebate came up before this Tribunal in the case of Madura Coats Pvt. Ltd. wherein this Tribunal has passed the following order: "3. After hearing both sides and considering the legal provisions, I find that as regards the rebate claim, the same have been sanctioned by the original authority and those are not in dispute. The dispute in this case, as stated by the Ld. Vice-President of the appellant-company, relates to interest on delayed payment of refund claims which, according to Explanation to Section 11B, also includes rebate of duty of excise. Clause (b) of the first proviso to sub-section (1) of Section 35B of the Act outsts the jurisdiction of the Appellate Tribunal to hear appeals against orders relating to rebate of duty of excise. It is silent regarding interest on the rebate claims which are treated as refund claims under Section 11B of the Act. As such, the preliminary objection raised by ld. DR is overruled as there is no specific bar to hear appeals of this nature by the Tribunal". From the above decision of the Tribunal it is clear that Section 35B(1) Clause (b) excluded the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time during the period commencing on and from the 1st day of March, 2002 and ending with the 7th day of December, 2006 under the rule as amended by sub-section (1), shall be deemed to be and always to have been, for all the purposes, as validly and effectively taken or done as if the amendment made by sub-section (1) had been in force at all material times. (3) For the purposes of sub-section (1), the Central Government shall have and shall be deemed to have the power to make rules with retrospective effect as if the Central Government had the power to make rules under section 37 of the Central Excise Act, retrospectively, at all material times. Explanation.--For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence, which would not have been so punishable if this section had not come into force. THE SIXTH SCHEDULE (See section 88) Provisions of the Central Excise Rules, 2002, to be amended Amendment Period of effect of amendment (1) (2) (3) Rule 18 of the Central Excise Rules, 2002 as published vide notification number G.S.R. 143(E), dated the 1st March, 2002. In the Central Excise Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation. Where any order of refund is made by the Commissioner (Appeals). Appellate Tribunal 4[, National Tax Tribunal] or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, 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.]" As per the plain reading of the above Section 11BB, it is clear that the interest is payable after expiry of three months from the date of filing of refund application. No exception was provided under Section 11BB, where the interest is not payable to the assessee. Therefore for whatever reason the delay has occurred in sanctioning the rebat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21] 1 K.B. 64 and Ajmera Housing Corporation & Anr. v. Commissioner of Income Tax, (2010) 8 SCC 739]. 11. At this juncture, it would be apposite to extract a Circular dated 1st October 2002, issued by the Central Board of Excise & Customs, New Delhi, wherein referring to its earlier Circular dated 2nd June 1998, whereby a direction was issued to fix responsibility for not disposing of the refund/rebate claims within three months from the date of receipt of application, the Board has reiterated its earlier stand on the applicability of Section 11BB of the Act. Significantly, the Board has stressed that the provisions of Section 11BB of the Act are attracted "automatically" for any refund sanctioned beyond a period of three months. The Circular reads thus : "Circular No. 670/61/2002-CX, dated 1-10-2002 F. No. 268/51/2002-CX.8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Non-payment of interest in refund/rebate cases which are sanctioned beyond three months of filing - regarding I am directed to invite your attention to provisions of section 11BB of Central Excise Act, 1944 that wherever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee that in fact the issue stands concluded by the decision of this Court in U.P. Twiga Fiber Glass Ltd. (supra). In the said case, while dismissing the special leave petition filed by the revenue and putting its seal of approval on the decision of the Allahabad High Court, this Court had observed as under : "Heard both the parties. In our view the law laid down by the Rajasthan High Court succinctly in the case of J.K. Cement Works v. Assistant Commissioner of Central Excise & Customs reported in 2004 (170) E.L.T. 4 vide Para 33 : "A close reading of Section 11BB, which now governs the question relating to payment of interest on belated payment of interest, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under subsection (2) of Section 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund but the relevant date is to be determined with reference to date of application laying claim to refund. The non-payment of refund to the applicant claimant within three months from the date of such application or in the case governed by proviso to Section 11BB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3rd July 2008, the assessee made an application seeking interest on the sanctioned rebate claim under Section 11BB of the Central Excise Act, 1944. By an order-in-original dated 13th March 2009, the claim for interest under Section 11BB was rejected. On appeal filed by the assessee, the Commissioner (A) by order dated 4th March 2010 set aside the order-in-original dated 13th March 2009 and held that the assessee is eligible for interest under Section 11BB. 4. Challenging the order of Commissioner (A), the Revenue filed a revision application and the Joint Secretary to the Government of India by his order dated 24th March 2012 upheld the order of the Commissioner (A) by relying upon the judgment of the Apex Court in the case of Ranbaxy Laboratories Limited v. Union of India reported in 2011 (273) E.L.T. 3 (S.C.) and an unreported judgment of this Court in the case of Union of India v. Jindal Drugs Limited in Writ Petition No. 9100 of 2011 decided on 30th January 2012. 5. Counsel for the Revenue sought to distinguish the judgment of this Court in the case of Jindal Drugs Limited (supra) on the ground that in the present case it is the assessee who by various letters had reques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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