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TMI Blog2017 (12) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... - ST/85044, 85045, 85046, 86545, 86555, 86577/17-Mum - A/90450-90455/2017-SMB - Dated:- 13-10-2017 - Dr. D.N. Panda, Judicial Member Shri Surinder Mehta, C.A., for appellant Shri Dilip Shinde, Assistant Commissioner (AR), Shri M.K. Sarangi, Joint Commissioner (AR), Shri V.R. Reddy, Assistant Commissioner (AR), for respondent ORDER Appellant s claim is that it filed refund applications on the following dates relating to the period noted against each corresponding amount involved as stated in the Table below:- Sr. No. Date of Refund Application Period of Refund Amount 1. 23.9.2005 10.9.2004 to 31.3.2005 4,58,525 2. 21.12.2005 1.4.2005 to 30.9.2005 10,74,696 3. 26.6.2006 1.10.2005 to 31.3.2006 22,93,731 4. 3.5.2007 1.4.2006 to 30.9.2006 21,08,265 2. In para two of its written submission filed on 6.10.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied by such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act : Provided further that the limitation of one year shall not apply where any duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Central Government, by Notification in the Official Gazette, 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 : Provided that where any duty ordered to be refunded under sub-section (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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. [Emphasis supplied] 7. Appellant without harmonious reading of law laid down by the Apex Court in para 9 of the judgment in the case of Ranbaxy Laboratories (supra), presses to read a part thereof which has explained implication of the explanation appearing under Section 11BB of the Act. The said explanation specifies that it has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. It follows that where an order of refund is made by Commissioner (Appeals) or Tribunal as the case may be, it is deemed to be an order passed under sub-section (2) of Section 11B and right to refund arises. Therefore when a higher court grants right to refund by its order, such order is deemed to be an order passed under Section 11B(2) of the Act in terms of Explanation to Section 11BB of the Act and interest on such refund arises if that is not granted within 3 (three) months of filing of application in that regard. Section 11BB operates only when an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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