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TMI Blog2006 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner had submitted several applications under the provisions of sec. 173L of the Central Excise Rules (hereinafter referred to as 'the Rules')to the Asst. Commissioner, Central Excise and Customs, Div. IV, Vadodara, for refund of ₹ 2,50,494.31. The said applications had been rejected by the said officer under his order dated 2.7.1991. 2.2 Being aggrieved by the aforesaid order, the petitioner had preferred an appeal before the Commissioner (Appeals), Mumbai, who remanded the matter for de novo consideration to the Asst. Commissioner. After hearing the petitioner, the Asst. Commissioner of Central Excise & Customs, Div. IV, Vadodara again rejected the applications and, therefore, the petitioner again preferred an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of sec. 11BB had been enacted later in point of time, learned advocate Shri Dave appearing for the petitioner has fairly submitted that the amount of interest under the provisions of sec. 11BB would become payable to the petitioner only from the date on which the said section had come into force but interest on the said amount be paid from 10.1.1990 till the day when sec. 11BB of the Act had been enacted on the basis of the judgment delivered by the Hon'ble Supreme Court in the case of Sandvik Asia Ltd. v. CIT & Ors., (2006) 280 ITR 643. 4. He has also submitted that the petitioner has a right to get interest as there was delay in payment of the refund, which was lawfully due to the petitioner and which had been wrongfully withheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sec. 11BB of the Act, in our opinion, the petitioner cannot be deprived of the interest on the amount of refund, which he is entitled to. 9. It is not in dispute that the amount of refund has been paid after the order of the Tribunal had been passed, but no amount of interest has been paid thereon. It is also not in dispute that the petitioner was entitled to refund of duty, which it paid earlier. The applications for refund submitted by the petitioner, though had been initially rejected, were finally granted by the Tribunal as it came to the conclusion that the petitioner was entitled to the refund of duty which it had paid. Now, the question remains with regard to payment of interest on the amount of duty which had been retained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal had decided the appeal on 18th Nov. 2003 and the order had been issued on 25th Nov. 2003. He has submitted that interest, even if payable, can be paid from the date commencing from 3 months from the date on which the Tribunal decided the appeal and not three months from the date on which the Asst. Commissioner, Central Excise & Customs, had rejected the applications for refund. He has relied upon the judgment in the case of Padmanabh Silk Mills (supra) to substantiate his point. 12. We are not in agreement with the submission made by the learned Asst. Solicitor General in this regard. Explanation to section 11BB of the Act reads as under: Explanation:- Where any order of refund is made by the Commissioner (Appeals), Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, the petitioner had a right to get the amount of refund within three months from 21.5.1996, the date on which the Asst. Commissioner, Central Excise & Customs, rejected all the applications for refund submitted by the petitioner. 13. If one looks at the judgment relied upon by the learned Asst. Solicitor General in the case of Padmanabh Silk Mills (supra), the said judgment deals with amount of interest on the refund of pre-deposit. In the said case, this court was concerned with refund of deposit, and the prayer made by the petitioner in that case was not granted. In the instant case, we are concerned with the refund of duty and not deposit and, therefore, in our opinion, the said judgment would not help the respondent. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice clearly denotes that delay beyond the period of 3 months should be viewed adversely and appropriate disciplinary action should be initiated against the concerned defaulting officers. It further warns that all concerned officers that default entails an interest liability and if such liability occurs by reason of any order of CESTAT or a court, such orders should be complied with and the amount of interest should be recovered from the concerned officer. 15. In our opinion, the aforestated view of the respondent authorities is absolutely justified because, on account of default committed by an officer of the government, the state exchequer should not suffer. 16. The observations made in the judgment cited by learned advocate Shri D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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