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TMI Blog2020 (11) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... e blank cheques recovered by officers from their premises. These blank and signed cheques were kept in the drawer of the table so that when the proprietor is not available, the employees can withdraw money and use it for emergencies. Later on the appellants submitted a refund claim on 24.12.2007 which was rejected by both the lower authorities. The Tribunal vide order No. A/2496/WZB/AHD/2008 dated 18.11.2008 observed that the appellate authority have not specifically denied that blank cheques were recovered, filled in and paid into the credit of Government. Consequently, the appeal was allowed with consequential relief to the appellant. The Revenue challenged the order before the Hon'ble Gujarat High Court however, the Revenue's appeal was rejected on 21.01.2009 by the Hon'ble High Court. The appellant again wrote a letter seeking refund of Rs. 15 Lakhs deposited by them along with interest on 10.02.2009. Thereafter, the Revenue confirmed the demand of duty on merit and the amount of Rs. 15 Lakh was adjusted against the said demand. The refund application was again rejected on the ground that said amount of Rs. 15 lakh was appropriated vide order-in-original No. 48/Addl. Commr./200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application made on 24.12.2007. Learned Counsel further pointed out that the adjustment done of Rs. 15 Lakh against the demand confirmed was illegal. He argued that such adjustment cannot be done unless the demand is finally confirmed and is not challenged. He pointed out that in the instant case, the demand was confirmed on 27.02.2009 and the said amount was appropriated vide order dated 02.03.2009, i.e. not even allowing them to approach the higher forum for stay and challenge. He relied on the decision of Tribunal in the case of Voltas Limited vs. CCE, Hyderabad - 2006 (201) ELT 615. He argued that in the said decision it has been held that such adjustment can only be made when the demand has reached finality and this provision should not be invoked at the initial stage. 5. Learned Counsel also relied on the following decisions to assert that even if the amount is adjusted against any demand, interest is required to be paid from the date of original application of refund claim if the same becomes due later on:- (a) Munch Food Products Limited vs. CCE -2016 (337) ELT 428 (b) Voltas Limited vs. CCE- 2006 (201) ELT 615 (c) CCE vs. Sterlite Industries (I) Limited -2007 (212) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akh deposited by the appellant in the month of September 2007 against duty demand. (ii) Rs. 5 Lakh was paid by the appellant against stay order issued by the appellate authority during the month of September 2009 as pre-deposit. (iii) Rs. 50,000/- was paid by the appellant under protest against the OIO as redemption fine in lieu of the confiscation of goods during the month of August 2011. While Rs. 15 Lakh was recovered by encashment of cheques in September 2007, the balance amount of Rs. 5 Lakh and Rs. 50,000/- was paid against stay order and redemption fine in lieu of confiscation, respectively. Learned Counsel claimed that there is no claim of interest on Rs. 5 Lakh and Rs. 50,000/-. He asked for interest in respect of Rs. 15 Lakh which was recovered from them by encashment of cheques in the month of September 2007. He argued that Section 35FF has no application in the instant case. He argued that the amount of Rs. 15 Lakh was not deposited under Section 35F and therefore question of application of Section 35FF to the facts and circumstances of the present case does not arise. I am in agreement with the claim of the learned Counsel that the amount of Rs. 15 Lakh deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. .......... ......... ............ " In view of above, I do not find any merit in the argument of the learned Authorised Representative that the appellants were required to claim interest along with refund of duty. I find that Section 11BB prescribes that interest is to be granted suo-moto along with refund. 10. Learned Authorised Representative further raised the issue regarding Section 11B (5)(B)(ec) which reads as under:- Section 11B(5) in the Central Excise Act, 1944 [Explanation - For the purposes of this Section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the period for interest has to be reckoned not only with reference to filing of refund application but also as per the provision of explanation (B)(ec) of Section 11B, therefore, interest is payable in accordance with said provision. As per our above observation, the appeal is partly allowed in above terms." Learned Counsel for the appellant pointed out that the facts in the case in Ashima Limited (supra) are significantly different. He pointed out that no claim of refund was filed till after confirmation of demand. He pointed out that while the appellant has deposited Rs. 60 Lakh and part of the demand was confirmed on 31.03.1999 and balance become refundable. The claim of refund was filed on 14.07.1999 i.e. after the adjudication process. He pointed out that in the present case, the refund claim was filed way back December 2007 and it has been continuously agitated before the Tribunal for the entire amount of Rs. 15 Lakh. He pointed out that in the said case, the amount was deposited whereas in the case in hand, the Revenue had taken the cheques lying in their office premise and recovered the amount on their own. I find that facts are significantly different i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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