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TMI Blog2018 (11) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal or any Court against the an order of Assistance 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 shall be deemed to be an order passed under the sub-section 2 of the sub-Section B for the purposes of this Section. The period of three months as mentioned in Section 11 BB of the Act is to reckon from the date of application as was filed under Section 11(1) of the Act and not from the application as was filed after the order of refund - the Department without any specific directions was liable to pay the interest. Appeal allowed - decided in favor of appellant. - Appeal No ST/52141/2018- ST(SB) - Final Order No. 53105/2018 - Dated:- 26-9-2018 - Mrs. Rachna Gupta, Member (Judicial) Shri Manish Saharan, Advocate for the appellant Shri P.K. Gupta, (AR) for the respondent ORDER Per: Rachna Gupta 1. Present is an appeal directed against the order of Commissioner (Appeals) dated 17 th April 2018. 2. The relevant facts are that the appellant M/s SKS Ispat Power Ltd. had filed the refund claim of ₹ 6,03,113/- under the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of granting of any interest on the amount refund. Justifying the order, Ld. DR has prayed for the appeal to be dismissed. 6. After hearing both the parties and perusing the case records, I am of the opinion that the question to be considered here is as to whether the Revenue is liable to pay interest under Section 11 BB of the Act of which commences from the date of expiry of three months from the date of receipt of application for refund or on expiry of the said three months period from the date on which the order of refund is made. For the purpose, the relevant provisions need to be looked into Section 11 B and 11BB as extracted below; 11B.Claim for refund of duty .-(1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in section 12A as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government, the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) ................................................................. (5) ................................................................ Section 11BB, the pivotal provision, reads thus: 11BB. Interest on delayed refunds.- 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for refund has been made under Section 11B of the Act. Section 11BB 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 11B 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 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 under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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