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TMI Blog2023 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ant matter, if there is any deficiency in the application, the department could have rejected the said application as they are under obligation to decide the application one way or other during the statutory period of three months. When the application for refund has been filed by the appellant on 26.10.2018, three months period has started running from that date itself. Liability for payment of interest after the expiry of three months is statutory and therefore it was a bounden duty of the authority concerned to pay interest after the expiry of the aforesaid period at the rate as specified under section 11BB ibid. The appellant is entitled for the interest on refund after the expiry of three months from the date of application till the date the payment of refund has been made and the order impugned herein is modified to that extent - the authority concerned is directed to calculate and pay the interest on refund to the appellant after the expiry of three months from the date of the application upto the date of refund, within a period of two months from the date of this order - application allowed. - Excise Appeal No. 86584 of 2019 - FINAL ORDER No: A/85162/2023 - Dated:- 9-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result the appellant is not entitled for any interest on refund claim. Learned counsel for the appellant submitted that since the amount has been deposited on their behalf during investigation before the issuance of show-cause notice, therefore the same has to be taken as pre-deposit and the interest has to be granted from the date of deposit of the amount till the date of refund. In support of his submission, learned Counsel placed reliance on the following decisions: i) CCE vs. Ucal Fuel Systems Ltd. 2014 (306) ELT 26 (Mad.) ii) Sreem Overseas Inc. vs. 2021 (378) ELT 641 (Tri- Chennai) iii) Pr. Commr CGST v.s Emmar MGF Construction Pvt. Ltd. 2021 (55) GSTL 311 (Tri-Del) iv) Lanvin Synthetics vs. CCE 2020 (374) ELT 759 (Tri- Mum) v) Kesar Enterprises vs. Commissioner of CGST, Noida 2022 (380) ELT 319 (Tri-All) Per contra learned Authorised Representative appearing on behalf of Revenue submitted that the amount deposited by the appellant during investigation cannot be termed as pre-deposit as it is not of the kind as envisaged under section 35F of Central Excise Act, 1944 and therefore Section 35FF has no application. Section 35FF is applicable to delayed refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is clearly governed by section 11B ibid and the interest is available under section 11BB and the interest is payable after completion of three months from the date of filing of refund application. The relevant paragraph of the aforesaid decision is extracted herein:- xxx xxx xxx I find that the limited issue to be decided by all this case is that in case, of deposit made during the investigation of the demand case whether interest on refund of such amount shall be payable from the date of deposit of such amount or from the date after 3 months of filling the refund application. As regard, the deposit made during the investigation it is obvious that there is no provision in Central Excise or to make a deposit. Whatever payment made it is towards the probable Excise duty liability for which the investigation is undergoing, therefore, it cannot be said that any deposit made during the investigation so made by the assessee is not a duty but only a deposit. Once the adjudication authority confirms the demand the said amount stands confirmed as duty only, the same being the duty stands appropriate against the demand confirmed in the adjudication order. For this reason also the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11BB ibid. A similar view has been taken by the Hon'ble High Court of Judicature at Bombay in the matter of CCE Pune III vs. Ballarpur Industries Ltd. 2008 (229) ELT 498 (Bom.) in which the Hon'ble High Court while interpreting section 11B and 11BB has held as under:- Perusal of the above provision shows that Section 11BB of the Act comes into operation only after an order for refund has been made under Section 11B of the Act. It lays down that in case any duty paid is found refundable then if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under Section 11B of the Act, then interest on the amount is liable to be paid on expiry of period of three months from the date of receipt of the application. The Explanation appearing below Section 11BB of the Act shows that it introduces deeming fiction that where the order for refund of duty paid is made not by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but is made by the Commissioner (Appeals), Appellate Tribunal or by the Court, then for the purpose of this section the order made by the Commissioner (Appeals), A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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