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TMI Blog2020 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... y, as per Section 35FF of the Act, the appellant was entitled to claim the interest on delayed refund after three months from the date of the order of this Tribunal. This Tribunal has finally disposed of the appeal of the appellant on 05.07.2018 - thus appellant is entitled to claim interest from 19.02.2019 the day on which the refund claim was allowed till its realization. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 61085 of 2019 - FINAL ORDER NO. 60413/2020 - Dated:- 3-12-2020 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) Ms. Krati Somani Ms. Priyanka, Advocate for the Appellant Mr. Rajeev Gupta Mr. H. S. Brar, ARs for the Respondent ORDER The appellant is in appeal against the impugned order for rejecting their refund claim. 2. The facts of the case are that and audit was conducted for the period 2007-2008 and 2008-2009 during the period 20.04.2009 to 24.04.2009. On 24.04.2009, the appellant reversed the cenvat credit of ₹ 17,67,816/- which was inadvertently entered in RG23C, part-II. Thereafter, on 16.09.2010 a show cause notice was issued to the appellant to demand cenvat credit of ₹ 78,30,427/- on account of wrong a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the copy of the order of this Tribunal. Thereafter, on 29.10.2019, this appeal has been filed. 3. The Ld. Counsel for the appellant submits that the refund claim has already been sanctioned by the order dated 19.02.2019 by the adjudicating authority and this Tribunal vide order dated 21.5.2019 has given the clear finding that no demand is sustainable against the appellant and the said order was communicated to the Ld. Commissioner (Appeals) but without taking cognizance of the same, the impugned order has been passed which is in gross violation of judicial discipline and submitted that the appellant is entitled for refund claim of the amount of ₹ 15,00,000/- alongwith interest from the date of deposit till its realization. The appellant relied on the decisions of M/s. Fujikawa Power and Another vs. CCE, Chandigarh-I - 2019 (11) TMI 1197-CESTAT Chandigarh, M/s. Marshall Foundry Engg. Pvt. Ltd. vs. Commissioner of CGSTFaridabad - 2019 (11) TMI 1269 and M/s Riba Textiles Ltd. vs. Commissioner of CE ST- Panchkula - 2020 (2) TMI 602. She also relied on the decision of the Hon'ble Madras High Court in the case of Commissioner of Central Ex. Chennai-II vs. UCAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was disposed off only on 21.05.2019. To support of this contention, he relied on the decision of the Hon'ble High Court of Bombay in the case of CCE, Mumbai-III vs. CEAT LTD - 2013 (298) ELT 525 (Bom.) wherein it has been held that while disposing of the appeal, the period upto the passing of the order on the Rectification of Mistake application by the Tribunal was excluding while deciding whether the delay in filing the appeal was condonable or not? Also, he relied on the decision of this Tribunal in the case of Shri Lotus Exports vs. CCE, Trichy 2011 (245) STR 444 (Tri. Chennai) wherein it has been held that while deciding the limitation for filing appeal whether to be reckoned from the date of the order in original or from the date of order passed on rectification application against said impugned order, it was held that the time limit for filing appeal shall be computed from the date of the order on such rectification application. Therefore, in the present case, the date of finality of Excise Appeal No. 652/2012 should be 21.05.2019 and not 05.07.2018. 6. With regard to calculation of delay in disbursal of refund prior to 06.08.2014 section 35FF of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the adjudicating authority, unless the operation of the order of the appellate authority is stayed by a superior court or tribunal, there shall be paid to the appellant interest at the rate specified in Section 11BB after the expiry of three months from the date of communication of the order of the appellate authority, till the date of refund of such amount. The said provision of Section 35FF was amended w.e.f. 06.08.2014 and the amended provisions are not applicable to facts of this case as per the said amendment. 10. As per the said provision, the assessee is entitled to claim the interest on delayed refund after the expiry of three months from the date of communication of the order of the appellate authority till the date of refund of such amount. 11. In the matter in hand, the appeal was finally disposed of on 05.07.2018 by setting aside the impugned order and the pre-deposit made as per the directions of this Tribunal on 15.05.2013, became refundable to the appellant. But the adjudicating authority held that the said amount is refundable to the appellant but appropriated the said amount against interest and penalty which was already set aside by the order dt. 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of this Tribunal in the case of M/s Fujikawa Power Another (supra). The facts of the said case are not applicable to the facts of the case in hand, as in the said case, the appellant did not deposit the amount as per the directions of the appellate authority in terms of Section 35F of the Central Excise Act, 1944. In fact, the amount has been paid before filing the appeal before the Tribunal. Further the reliance on the case of UCAL Fuel Systems Ltd (supra) it also no help, as in the said case, the amount was deposited by the assessee during the course of investigation. Further the other case laws relied upon by the ld. Counsel for the appellant followed the decision in the case of M/s Fujikawa Power Another (supra); therefore, they are not relevant to the facts of the case in hand. In the case of Balaji Wire Pvt Ltd (supra), relied upon by the ld. Counsel, the amount was paid by the assessee under protest. Moreover, in the case of M/s CNH Industrial India Pvt Ltd (supra) also, the amount was paid by the assessee under protest. Therefore, those decisions are of no help to the appellant. On the other hand, the ld. A.R. for the Revenue relied on the decision Som Flav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2014. Thus, in view of the proviso to the amended Section 35FF of the Act, the payment of interest to the petitioner would be governed by the unamended Section 35FF of the Act. Accordingly, if at all the petitioner would be entitled to interest on the amount refunded, it will be for the period the amount had remained with the respondents after three months from the date of communication of the appellate order. Sri Mathur at this stage submits that the amount deposited by the petitioner was not under Section 35F rather it was deposited as a duty and the claim was made for refund under Sections 11B and 11BB of the Act. The submission is devoid of any force, inasmuch as the petitioner had deposited the duty of excise on 24.04.2014 and 28.04.2014 pursuant to the order of the Tribunal, which would essentially be a deposit under Section 35F of the Act. The deposit under Section 35F of the Act also contemplates the deposit of excise duty and not any other amount. Sri Mathur next argued that merely for the reason that there is no express provision for the payment of interest for the entire period, the petitioner cannot be denied interest on the amount that had remained with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner on 05.09.2016 and therefore, in the absence of any date of communication of the order, the date of the application would be recognized as the date of communication of the appellate order. In addition to the above, the application of the petitioner for refund was decided vide order dated 28.11.2016 and the petitioner was held entitled to the refund of the excise duty deposited pursuant to the interim orders of the Tribunal. The petitioner was not held entitled to any interest. The petitioner has not objected to the said order and has neither challenged it in appeal or has asked for its rectification. The above order having become final and accepted by the petitioner by taking he refund without interest with no protest, no further relief in exercise of extra ordinary jurisdiction can be extended to the petitioner. In view of the aforesaid facts and circumstances, we do not find any merit in this petition to direct for payment of any interest on the amount refunded in the absence of any specific provision providing for payment of interest for the entire period, the amount had remained in custody of the Revenue. Accordingly, the writ petition is dismissed. 1 ..... 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