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TMI Blog2022 (4) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... aim on 29.07.1998 after the Commissioner (Appeals) decided their appeal on 06.01.1998 and held that the goods are rightly classifiable under heading No. 2302 and charge to nil rate of duty - it is seen that in ordinary course of refund arising out of finalization of provisional assessment would be decided in terms of Rule 9B however if any refund arises on account of challenge to an order passed under Sub Rule (5 )of Rule 9 B then such demand or refund would be governed by section 11 A or Section 11 B as the case may be. In the instant case there is no finalization of Provisional assessment and there is no challenge to any such assessment, in these circumstances the refund would not be governed by provisions of Rule 9 B. Relying on the CBEC Circular No 670/61/2002-CX/1 dated 01.10.2002. Another SCN was issued wherein it was held that the refund arising on account of finalization of provisional assessment under Rule 9 B are not governed by the provisions of section 11B. It is seen that this view is in harmony with the observation of Hon ble Apex Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] .In this regard the observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 15.07.1998 whereas the same came to be sanctioned on 05.03.2008. On 19.06.2008 a SCN was issued to the appellant proposing rejection of claim of interest on the ground that the amount was refunded pursuant to finalization of provisional assessment in terms of Rule 9 B of the rules and that Section 11BB of the act is not applicable to the refunds under rule 9B. The claim for interest was rejected by the Deputy Commissioner on 26.03.2009. The appellant filed an appeal before the Commissioner (Appeals) dated 31.12.2009. This said appeal was rejected by the Commissioner (Appeals) on the ground that the refund claim was allowed under Rule 9B of the erstwhile rule and not under section 11 B of the act and therefore there was no case for interest on the delayed refund since Rule 9 B of the erstwhile rule contained no such provisions for interest. Aggrieved by said order the appellant is before the Tribunal. 2.1 Learned Counsel relied on the decision of Hon ble High Court of Allahabad in the case U.P Twiga Fiber Glass Limited- 2008 (229) ELT 205(All.). The SLP filed against the said decision of the Hon ble High Court of Allahabad was dismissed by the Hon ble Apex Court as reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents to pay the interest at the prescribed rate immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty, which in the present case is from 24-4-2005 to 10-3-2010. The case of the respondent is that with effect from 3-6-2008, the amount had been transferred to the Consumer Welfare Fund and therefore, the liability of the Revenue to pay any interest was discharged. In the opinion of this court, such contention cannot be countenanced for the reason that the Section 11BB of the Central Excise Act provides for payment of interest after a period of three months from the date of application till the date of actual payment. The statute does not provide for curtailment of the period for which the interest has to be paid on account of any super winning circumstances, like transfer of the amount to the Consumer Welfare Fund. The learned counsel for the respondents is not in a position to point out any provision of law which shows that when the amount is transferred to the Consumer Welfare Fund, the period for which the assessee would be entitled to interest under Section 11BB of the Central Excise Act would sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable to it. Under the circumstances, while the Court is of the view that the petitioner is entitled to the grant of compensatory costs, which are quantified at ₹ 25,000/-. In this case the interest on the refund was curtailed and interest was not sanctioned for the period after the order of Commissioner (Appeals) on account of which the refund became due. Thus we find that the facts of the case as well as issue in dispute are different. 4.2 The appellant have also relied on the decision of Hon ble High Court of Gujarat in the case of Reliance Industries Ltd (Supra) wherein the Hon ble High Court observed as follows:- 10 . Section 11-BB of the Act makes provision for payment of interest from the date immediately after expiry of three months from the date of receipt of the application under sub-section (1) of that section, till the date of refund of such duty at such rate as may be fixed by the Central Government by notification in the Official Gazette subject to the minimum and maximum limits specified thereunder, if any duty ordered to be refunded under sub-section (2) of Section 11-B to any applicant is not refunded within three months from the date of recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rawmin Mining and Industries Pvt Ltd .The said case also relates to refund under Notification No 41/2007-ST dated 06.10.2007 which is operated by allowing refund as an exemption in respect of goods exported. In para 11 following have been observed:- 11. It is undisputed fact in view of the Notification No 41/2007-ST dated 06.10.2007, the petitioner became eligible to the refund of the duty, which has paid to the service provider in respect of service, availed for the exports of goods. It is undisputed fact that the petitioners promptly lodge refund claim on 13.06.2016, which was rejected by the Respondent No. 2. The Petitioner ultimately got the order of full refund vide order of Appellate Tribunal dated 25.05.2018, whereupon they claimed refund with interest by submitting letter dated 12.06.2018 to the respondent no 2. They have got the refund f the duty without interest on the specious ground that the refund was paid within three Months on 12.07.2018. We are unable to countenance the contention of learned advocate for the respondent that the refund was promptly within two months after receipt of formal letter and also after the decision of the appellate tribunal. We are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.1 The Tribunal in its order insisted that if a claim for refund of duty is to be accepted, it is required to be established by the petitioner that it has not passed the burden of duty to others. Reiteratively, it is emphasized that duty has been collected from ITC to whom the goods had been supplied and therefore, there was no sustainable claim for refund of duty. The Tribunal also refused to accept the contention of the appellant that since the duty was paid under protest and was received from ITC, that aspect does not fall under doctrine of unjust enrichment. It is needed to be noted for clarity at this juncture that Section 18 and Section 27(2) of the Customs Act are parimateria and similar to Section 11B and Rule 9B of the Central Excise Act Rules as subsequent rulings of this Court and of Delhi High Court are sought to be relied upon. 18.2 Going by the decisions of the Apex Court in the case of Mafatlal (supra) and the decision given in case of Hindalco Industries Ltd. (supra) and all other subsequent decisions on the issue, the refund claim of the petitioner-assessee would not be governed by the Section 11A or Section 11B of the Central Excise Act as the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation. From the above it is seen that in ordinary course of refund arising out of finalization of provisional assessment would be decided in terms of Rule 9B however if any refund arises on account of challenge to an order passed under Sub Rule (5 )of Rule 9 B then such demand or refund would be governed by section 11 A or Section 11 B as the case may be. The same view has been taken by Hon ble High Court of Gujarat in the case of Contemporary Packaging Technologies P Ltd in Para 18, 18.1 18.2(Supra). 5.1 In the instant case there is no finalization of Provisional assessment and there is no challenge to any such assessment, in these circumstances the refund would not be governed by provisions of Rule 9 B. 5.2 The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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