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TMI Blog2018 (7) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the same cannot be treated as complete application. In the present case though the refund application was filed 27.09.2006, but the same was not substantiated by the proper documents. Accordingly the same was rejected by the jurisdictional Assistant Commissioner - After receipt of the complete documents on 15.02.2011 and their verification Commissioner (Appeal) has vide order dated 29.04.2011 sanctioned the refund claim and set aside the order of the adjudicating authority dated 19.10.2007. Interest in terms of Section 11BB becomes payable to the appellant only after expiry of three months from the date of submission of supporting documents i.e. 15.02.2011. This issue whether the said refund could have been allowed or not on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he invoices were not filed and produced before him for proper scrutiny of the refund claim. Against the order of the Assistant Commissioner, appellant filed an appeal to Commissioner (Appeal). After hearing the appellants on 15.02.2011, Commissioner (Appeal) has vide order in appeal dated 29.04.2011 allowed the appeal thereby allowing the refund claim filed by them. 3. In pursuance of the order in appeal passed by the Commissioner (Appeal), jurisdictional Assistant Commissioner sanctioned the refund as claimed by the Appellant in their favour vide his order dated 19.08.2011. However while sanctioning the refund, Assistant Commissioner did not allow the interest claimed by the Appellant for delay in payment of the refund claim. Against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is admissible. In terms of the said section, interest is payable at prescribed rate for any delay beyond three months from the date of filing the refund claim. Since they have filed the refund claim on 27.09.2006 the interest should be allowed in their favour after expiry of three months from the date of claim. He relied on the decision of High Court of Bombay in case of Shelf Drilling International Inc Vs Union of India [2016-TIOL- 2187-HC-MUM-Cus] 6. Learned Authorized representative assailed the order of Commissioner (Appeal) and stated that the said order is bad in law, because refund claim was allowed within period of three month from the date of receipt of the order dated 29.04.2011 of Commissioner (Appeal). Since refund has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim becomes essential and needs to be determined. In case where the refund claim has been filed without the supporting documents then in that case, the refund claim cannot be deemed to be filed on the date when it is physically filed with the jurisdictional officer but can be the date when all the supporting documents in support of the claim has been filed. In the Chapter 9, on Refunds, in Manual Of Supplementary Instructions issued by Central Board of Excise and Customs, para 2.4 reads as follows:- 2.4 It may not be possible to scrutinize the claim, without the accompanying documents and decide about its admissibility. If the claim is filed without requisite documents, it may lead to delay in sanction of the refund, Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the so called excess payment had occurred. The applicant had provided only the consolidated work sheet indicating the excess payment. Therefore, the adjudicating authority in its order in original dated 19.10.2007 rejected the refund claim on the ground of non production of documents evidencing excess payment of service tax. Against the said order, appellant filed an appeal before the Commissioner (Appeal). On going through the O-I-A dated 29.04.2011, I find that the Commissioner (Appeal) in his order allowed the appeal only after going through the relevant invoices and documents submitted on 15.02.2011 by the Appellant in the office of Commissioner (Appeal) evidencing the payment of excess amount of service tax. The fact that the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed by the revenue. We are clearly of the opinion that the second order sanctioning the refund claim by the Adjudicating Authority was not required as Commissioner (Appeal) has vide order dated 29.04.2011 allowed and sanctioned the refund claim in favour of the party. In terms of explanation to section 11BB, the said order of Commissioner (Appeal) was deemed to be an order under sub-section (2) to Section 11B. If that be so the reasons for again undertaking the adjudication proceedings to sanction the refund claim was totally uncalled for. Since in terms of the said explanation the order of Commissioner (Appeal) is deemed to be order under section 11B(2), he could not have but adjudicated upon a refund application filed before him on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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