9911796707
TMI Blog2020 (2) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection of refund claim. Further, the appellant has raised the ground of closure of business before the Commissioner(Appeals) and also agitated the same at the time of personal hearing on 09/07/2012 itself and this fact is clearly recorded by the Commissioner(Appeals) in his order dt. 17/10/2012 in para 3 which is reproduced. Once the appellant has taken the ground of closure of factory in the year 2012 itself before the Commissioner(Appeals), then thereafter the adjudicating authority holding that the Tribunal has allowed the appeal on altogether new ground is not sustainable in law. The impugned order is not sustainable in law and the same is set aside by allowing the appeal of the appellant - The original authority will quantify the interest after the expiry of 3 months from the date of filing of the refund claim till the interest is finally sanctioned - appeal allowed by way of remand. - E/20575/2019-SM - Final Order No. 20012/2020 - Dated:- 3-1-2020 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Shri Cherian Punnoose, Advocate For the Appellant Shri K.B. Nanaiah, Asst. Commissioner (AR) For the Respondent ORDER PER : S.S GARG The present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting at the time of rejection of refund. He further submitted that adjudicating authority has held that the first refund application was filed on 29/12/2011 for refund of accumulated balance of cenvat credit under Rule 5 of the CCR, 2004 read with Notification No.05/2006-CE(NT) dt. 14/03/2006 whereas the Hon ble CESTAT has allowed the refund claim on the ground that the unit/factory was closed in June 2012, which is totally a different ground and the said finding of the adjudicating authority has been upheld by the first appellate authority. learned counsel further submitted that both the lower authorities have failed to notice that the liability to pay interest arises on the factum of delay in granting the refund, which has nothing to do with the grounds on which the refund is granted. He also submitted that Section 11BB of the Central Excise Act, 1944 does not make any distinction between the refund granted on one ground or other. All that contemplates is that if there is a delay in granting refund, the interest thereon shall be paid to the claimant to the extent of delay. He further submitted that both the lower authorities have failed to note that the refund which has been gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of closure of factory was taken in the year 2012 itself before the Commissioner(Appeals) and therefore the finding of the adjudicating authority that the Hon ble CESTAT has allowed the appeal based on altogether new ground is not sustainable. In support of his submission, the appellant relied upon the following:- i. CBEC Circular No.670/61/2002-CX dt. 01/10/2002. ii. Ranbaxy Laboratories Ltd. Vs. UOI Ors [2011(10) TMI 16- Supreme Court] iii. Jubilant Biosys Ltd. Vs. CST, Bangalore [2017(11) TMI 548- CESTAT Bangalore] 5. On the other hand, the learned AR defended the impugned order and submitted that the appellant never produced the proof of closure of business while filing the refund application on 29/12/2011. He also submitted that the said proof of closure of business was produced vide letter dt. 07/05/2018 evidencing closure of the unit on 22/06/2012. He also submitted that the first Order-in-Original rejecting the refund claim was passed on 27/03/2012 which is prior to closure date i.e. 22/06/2012. He further submitted that in accordance with CESTAT Final order dt. 12/01/2018, the refund was sanctioned vide Order-in-original dt. 02/08/2018 and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the refund vide order dt. 02/08/2018 but did not grant interest which was demanded by the appellant for delay in sanctioning the refund. Further I find that the only ground on which the interest has been denied by the original authority and upheld by the appellant authority is that the CESTAT has allowed the appeal on altogether different ground which was not existing at the time of rejection of refund claim. Further I find that the appellant has raised the ground of closure of business before the Commissioner(Appeals) and also agitated the same at the time of personal hearing on 09/07/2012 itself and this fact is clearly recorded by the Commissioner(Appeals) in his order dt. 17/10/2012 in para 3 which is reproduced supra. Once the appellant has taken the ground of closure of factory in the year 2012 itself before the Commissioner(Appeals), then thereafter the adjudicating authority holding that the Tribunal has allowed the appeal on altogether new ground is not sustainable in law. Further I find that the law on the payment of interest has been settled by the Hon ble Apex Court in the case of Ranbaxy Laboratories Ltd. cited supra wherein the Hon ble Apex Court, in paragraphs 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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