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TMI Blog2021 (8) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. After three months of the decision of the Tribunal, the appellant filed a letter dated 21.2.2017 requesting the department to grant refund as per the order of CESTAT. The Tribunal s decision dated 16.7.2014 communicated on 25.11.2016 has attained finality, then there is no power or jurisdiction to the lower authority to re-adjudicate the matter again in view of the various decisions cited supra. Further, the department has erroneously relied upon the GST Circular to reject the refund of CENVAT credit and the said Circular is contrary to the provisions of erstwhile Service Tax Regime and are not binding on the Court. Demand of interest for delayed refund - HELD THAT:- Since the issue of interest on delayed refund has been settled by the apex court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [ 2011 (10) TMI 16 - SUPREME COURT] wherein Hon ble Supreme Court has held that interest on delayed refund under Section 11BB is payable on expiry of three months from the date of receipt of application under Section 11B(1) and not from the date of the order of refund or appellate order allowing such refund - the appellant is entitled for interest as per the apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation as the refund application was not filed within one year from the date of receipt of the order of the CESTAT. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) and the Commissioner (A) upheld the order of the original authority and rejected the refund claim. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the application for refund need not be made at each stage of adjudication process of an original refund claim and there is no express provision in CENVAT Credit Rules, 2004 for filing of subsequent application. He also submitted that the relevant date as envisaged in Section 11B of the Central Excise Act, 1944 applies only to the first application of refund claim made to Assistant/Deputy Commissioner. It was his further submission that the refund, in the present case, has not accrued on account of any order or judgment but the refund was originally claimed based on the statutory provisions read with the Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and there is no requirement of filing additional refund claims at every stage of proceedings. He also submitted that the Circulars and clarifications cannot be contrary to the statutory provisions. For this, he relied upon the following decisions: * Commissioner of Central Excise, Bolapur vs. Ratan Melting & Wire Industries: 2008 (231) ELT 22 (SC) * Commissioner of Service Tax, Mumbai vs. Reliance Communication Ltd.: 2008 (11) STR 258 (Tri.-Mumbai) 4.3 Learned counsel further submitted that the Commissioner has erroneously relied upon the GST Circular to reject the refund of CENVAT credit under erstwhile Service Tax Regime read with CENVAT Credit Rules, 2004. He has also claimed interest on delayed refund in their grounds of appeal as per law laid down in the following judgments. * Ranbaxy Laboratories Ltd. vs. UOI: 2011 (273) ELT 3 (SC) * UOI vs. Hamdard (WAKF) Laboratories: 2016 (333) ELT 193 (SC) * Surajbhan Synthetics (P) Ltd. vs. CCE: 2017 (49) STR 98 (Tri.-Bang.) * Om Refoils Ltd. vs. UOI: 2018 (361) ELT 98 (P & H) 5. On the other hand, the learned AR reiterated the finings of the impugned order. 6. After considering the submissions of both the parties and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount, the appellant after waiting about four years wrote a letter dated 14/01/2019 requesting the Assistant Commissioner to release the amount in view of the judgment of the Commissioner (Appeals) dated 27/07/2015 but the Department wrongly issued a show-cause notice proposing to deny the refund claim on time-bar and subsequently denied the refund claim by Order-in-Original dated 29/04/2019 on time-bar and the same was upheld by the Commissioner (Appeals) by the impugned order. Further, I find that the Commissioner (Appeals) has wrongly invoked the provision of Clause (ec) for denying the refund on the ground that the refund has arisen on account of the order passed by the Commissioner in appeal whereas in fact the refund has arisen on account of export of goods and the Department having accepted the order of the Commissioner (Appeals) dated 27/07/2015 should have refunded the amount in cash to the appellant. This issue has been considered by the Tribunal in the case of SPIC Ltd. Vs. CCE, Chennai (cited supra) wherein on identical facts, the Chennai Bench of the CESTAT has held that there is no need to file any refund application under the provisions of the Act. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11B, either before the amendment or after the amendment does not envisage that the assessee should file fresh refund application following a successful appeal/revision proceedings by the parties. Once a refund claim is filed, before the concerned authority, as has been done by the appellants in the present case, statutory requirement in this regard has been complied with by the claimant seeking refund under the Act. Refund application need not be made at each stage if the initial claim before the Assistant/Deputy Commissioner is not successful. The law laid down by the Apex Court in the Mafatlal Industries Ltd. is that all refund claims including those made pursuant to an Order-in-appeal/revision were subject to provisions of Section 11B of the Central Excise Act/Section 27 of the Customs Act. I am therefore, of the considered view that the appellants are eligible for the refund amounts claimed. Their claims shall be allowed after scrutiny also from the angle of unjust enrichment as ordered by the Commissioner (Appeals). Accordingly, I allow both the appeals." 5.1. Further this decision of the CESTAT has been upheld by the Madras High Court which is reported in 2015 (318) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. 10. It is a well settled proposition of law that a fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision; there is nothing to be read in; nothing to be implied and there is no room for any intendment. [See: Cape Brandy Syndicate v. Inland Revenue Commissioners, [1921] 1 K.B. 64 and Ajmera Housing Corporation & An ..... X X X X Extracts X X X X X X X X Extracts X X X X
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