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TMI Blog2023 (5) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... No E/86570/2017. Appeal filed by the appellant assessee needs to be adjudged in their favour holding that the relevant date for computing the interest under Section 11BB would be the date of acknowledgement of the application for the refund made under Section 11B (1) and not the date of submission of the documents - the issue involved in the remaining two appeals which are against the order dated 25.08.2020, is adjudged in the favour of appellant assessee and against revenue - appeal filed by the revenue challenging the grant of interest for the period from 30.11.2010 to October 2017 is dismissed. - Excise Appeal No. 86570 of 2017 WITH Excise Appeal No. 86002 of 2019 Excise Appeal No. 86137 of 2020 Excise Appeal No. 85290 of 2021 - FINAL ORDER NO. A/85541-85544/2023 - Dated:- 11-4-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) And HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Gajendra Jain with Shri Rajesh Ostwal, Advocates, for the Appellant/Assessee Shri Amrendra Kumar Jha, Deputy Commissioner, Authorised Representative, for the Revenue ORDER PER : SANJIV SRIVASTAVA The four appeals as detailed in the table below are taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner to decide the matter within three months from the date of receipt of the order. The adjudicating authority vide the impugned order dated 21.10.2015 rejected the entire refund of Rs.5,53,97,108/- being hit by bar of unjust enrichment and limitation of time. 9. Further, I observe that that out of the total claim of Rs.5,53,97,109/- filed for all the three periods, i.e., from Dec.1978 to Aug. 1997, the appellant submitted and accepted that out of the total refund claim filed by them, net refund amount due for the third period i.e., from July 1988 to August 1997 is Rs.3,35,57,086/- only and they are not pressing of the refund of the balance amount. Further, they stated that the claim for the third period is not hit by Section 11B and therefore not barred by limitation. This claim has to be granted as a consequential relief giving effect to the orders passed in finalization proceedings. They had deposited excess duty pursuant to the orders passed in course of finalization of provisional assessment by various authorities. When the finalization had attained legal conclusion, they filed a reminder to intimate the department for refund of the excess excise duty which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 11B of CEA cannot arise. Further finalisation of provisional assessment no application is required to be made and there is no limitation under the Central Excise law. Once parameters of finalisation of provisional assessment. have been done there should have been consequent order of demand or refund of duty without waiting for application from the appellant. This has not been done though application was made on 29.07.2002. The respondent has rejected this application dated 29.7.2002 terming it as it is not a proper application of refund and that it was not in proper format and submitted before the Superintendent who is not a proper authority for filing refund application. Furthermore, it was also stated that it is not a complete application. As discussed above as the provisional assessment was not finalized the question of filing of refund application shall not arise. For refund under Section 11B the relevant date for refund is the date of finalisation of refund under Section 11B. This Section has no relevance w.r.t. grant on refund in case of provisional assessment. 13. Even otherwise I observe from find that TR-6 Challans by which they paid Central Excise duty sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim not to be denied merely on ground that same was not filed in prescribed form - If refund claim not filed in proper form or without necessary documents, department can direct appellant to file the same in proper form along with supporting documents - Date of filing claim is the date on which claim was filed initially in form not prescribed or without documents - Section 118 of Central Excise Act, 1944- Rule 57F(4) of erstwhile Central Excise Rules, 1944. [para 4] Furthermore the refund of duty is basically consequent to order of Commr(Appeals) for which there was no requirement to file refund application. The requirement to file refund application under Section 11B has been inserted w.e.f 17.11.1980 vide Notification No. 182/80-CE dated 15.11.1980. This view is supported in the case law of Collector of Central Excise Vs Madras Vs Ashok Leyland Ltd, Madras [1987 (29 ELT 530 (Tribunal)] Refund - Duty paid under protest - High Court decision in favour of assessee regarding assessable value - Appeal filed by Department against High Court decision and higher duty paid by assessee under protest Refund claim filed beyond six months from relevant date, after Supreme Court J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the instant case. In this connection, I find that in case of M/s Malwa Cotton Spinning Mills Ltd. Vs. CCE Ludhiana, Hon ble Tribunal as reported in [2013 (2) ECS 86 (Tri-Del)] decided as under: In view of the above judgement I find that the date on which refund application filed by the appellant became fit in accordance with Section 11B of the Central excise Act, 1944 shall be taken as date of filing the refund application for the purpose of interest calculation in case refund is delayed and accordingly, adjudicating authority needs to examine such date an proceed to sanction interest on delayed refund in accordance with law. Order in Appeal No AJV/106/RGD APP/2020-21 dated 25.08.2020 9. After rejection of refund claim by the Assistant Commissioner Mumbai-III vide Order No. 48/R/08-09 dated 06.02.2009, issue further went ahead to the Additional Commissioner (Appeals) who directed LTU for re-verification of entire refund claim. Commissioner of Central Excise, LTU vide letter dated 30.11.2010 submitted that Rs. 3,36,51,600/- can be refunded to the appellant. Further, Commissioner (Appeals), LTU, Mumbai vide OIA dt. 30.01.2012 upheld the OIO dated 06.02.2009 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (A) has directed appellant to file fresh refund application. Even if such directions were given then also it would have been for procedural requirement only because fact remains that department was in the position to calculate refund amount as narrated in above para 10. On the contrary I find that at para 16 of the Commissioner (A)'s OIA No. SK/115/LTU/MUM/2016-17 dated 28.03.2017, it is mentioned that the Additional Commissioner, LTU, Mumbai had verified refund claim and found that amount of Rs 3,36,51,600/- is admissible to the appellant. As narrated at Para 10 above, department had already calculated the eligible refund amount on 30.11.2010 and this in itself shows that department was having all the documents required to calculate refund amount. Accordingly, therefore, I do not agree with the adjudicating authority's observation that 30.10.2017 should be relevant date for the purpose of calculation of interest. 2.2 The first of the impugned order dated 28.03.2017 subject matter of first appeal in the table in para 1 above has been challenged by the revenue on the ground that same is barred by limitation. Taking the note of the Board Circular No 572/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissed placing reliance on the decisions as follows: Hindustan trust Ltd. [1998 (97) ELT 361 (T)] Indofil Chemical Co [2001 (45) RLT 1068 (T)] Mahindra and Mahindra Ltd. [2001 (43) RLT 514 (T)] Saharia Krishi Van Prathistan [2003 (58) RLT 308 (T)] Spade Elektro (P) Ltd. [2004 (175) ELT 319 (T)] The time limit should start from the date of staking the claim i.e. 29.07.2002. Proper form for claiming the refund is totally irrelevant. Arya Export Industries [2005 (192) ELT 89 (Del)] P S Tech Com [2013 (296) ELT 468 (T)] Bhandiguri Tea Estate [2001 (134) ELT 116 (T)] Agniplast [2010 (19) STR 838 (T)] Amrit Paper Mill [1991 (54) ELT 293 (T)] Hindustan Bobbin Industries [1987 (30) ELT 293 (T)] GTC [1989 (42) ELT 29 (T)] Affirmed at [1997 (96) ELT A223 (SC)] IPG Engineers Pvt Ltd. [2008 (232) ELT 481 (T)] Duraline India Pvt Ltd [2009 (237) ELT 689 (T)] Repro India Ltd. [2016 (43) STR 203 (T)] TVS whirlpool ltd. [1994 (74) ELT 496 (Mad)] Balmer Lawrie co Ltd. [2015 (315) ELT 100 (T)] Hindustan Sanitaryware Industries Ltd. [2004 (168) ELT 243 (T)] Arunodaya Mills Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant assessee and verified by the department on 30.11.2010. The appeal filed by the revenue on this account need to be dismissed. As all the documents and the refund claim was made on 29.07.2002 and hence interest should be granted taking the same as base date. 3.3 Learned Authorized representative reiterates the submissions made in the revenue appeals and also the findings recorded by the Commissioner (Appeals) in the appeals filed by the appellant. 4.1 We have considered the impugned order along with the submissions made in the appeals and during the course of arguments. 4.2 Undisputed facts as recorded by the Commissioner (Appeals) in the impugned order dated 28.03.2017, by referring to the appeal filed by the appellant before him are reproduced below: This appeal has been filed by appellant against the impugned order passed by the Asstt. Commissioner, Central Excise Service Tax, LTU, Mumbai wherein the refund claim dated 14.11.2006 of Rs.5,53,97,108/- was rejected being hit by bar of unjust enrichment and limitation of time in terms of Section 11B of the Central Excise Act, 1944 (herein after as 'CEA'). 2. Briefly the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant's appeal by way of remand. The order part is quoted as given below: 11. Accordingly we remand the matter to the adjudicating authority to decide the case afresh after affording an opportunity of personal hearing to the appellant. We may point out that on some issues, we have given our observations on merits. However, in our considered view, noting the history of the case, it deserved to be addressed again on the issues keeping in view the integrity of the matter. Being a very old case, in the interest of justice, we direct the Assistant Commissioner to decide the matter within three months of the receipt of this order. All issues kept open. As per the direction of the Hon'ble Cestat a Personal Hearing was held on 30.9.2015 which culminated into the impugned order. 3. Being aggrieved with the impugned orders, appellant filed the appeal on the grounds: 3.1 that the portion of the impugned Order-in-Original dated 21.10.2015 passed by the adjudicating authority which is against the appellants, is incorrect in law as well as on facts. The adjudicating authority has passed the order without considering any submission made by the appellants. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been passed. Hence, there is no claim in law in terms of Section 11B. The adjudicating authority has committed a fundamental error here. 3.6 that say for example the appellants paid Rs.100 as per the adjudicating authority's order finalizing provisional assessment. On appeal filed by the appellant, the Commissioner (Appeals) reduced the amount payable on finalization of provisional assessment by allowing deduction of certain discounts which were originally disallowed in the Orders finalizing provisional assessment. In the above example, the Commissioner(Appeals) held that the amount payable on finalization of provisional assessment is Rs.80/- instead of Rs. 100/- paid by the appellants. 3.7 that when the Order finalizing provisional assessment was modified by the Commissioner(Appeals) by allowing certain additional deductions, the Revenue is obliged to make refund of excess amount deposited by the appellants against Orders finalizing provisional assessment. The Revenue is bound in law to restitute the amounts of such refund to them. Further, the provisions of Section 11B will not apply to the said amount refundable to the appellants. In this they relied on few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ii) The position as to allowance and disallowance of deduction of various discounts/deduction given by them for the 3rd period from July 1988 to August 1997 attained finality by the Commissioner of Central Excise (Appeals), Mumbai- II. O-in-A No. RJB/M-11/380-384/2001 dated 31.12.2001 (issued on 7.1.2002). However, this O-in-A dt. 31.12.2001 was relied in another O-in-A of Commissioner(Appeals) dated 30.9.2002 against which the department filed appeal before CESTAT and then Bombay High Court. In case the Tribunal or High Court had set aside the Order dated 30.9.2002, the department would have reviewed the Order dated 31.12.2001 (relying on which the Order dated 30.9.2002) and filed appeal. Therefore, the O-in-A dated 31.12.2001 attained finality only after the Bombay High Court's Order dated 21.2.2006 upholding O- in-A dated 30.9.2002. Hence, the refund for the third period also arises consequence to the Order dated 21.2.2006 passed by the Bombay High Court. iii) They reproduced the last para of the Order dated 30.9.2002 which reads as under: I uphold the appeal in respect of cash discount and bonus as discussed in the Order-in-Appeal No.380 to 384 dated 31.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being this application was filed within the stipulated period of one year of filing refund claim under Section 11B of the Central Excise Act, 1944. They were orally informed by the department that the appellants need to wait for the decision of the appellate authority in the appeals filed by the department for the earlier periods. viii) At one side the department refused to work out refund amount consequence to Order dated 31.12.2001 on the ground that this Order dated 31.12.2001 was relied in Order dated 30.9.2002 against which the department's appeal is pending and on the other hand the department refused the refund claim to the appellants on the ground that the appellants did not file the refund claim immediately after the Order dated 31.12.2001, the department cannot blow hot and cold together. ix) In view of the above, the finalization of provisional assessment for entire period involved in the present case attained finality by the Bombay High Court's Order dated 21.2.2006. In other words, the refund claim arose only consequence to the Order dated 21.2.2006 passed by the Hon'ble Bombay High Court. They had filed refund claim dated 9.11.2006 on 14.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition before the High Court of Madras and sought the writ of certiorari contesting that the main dealers are not related persons. A learned Single Judge of the Madras High Court allowed the writ in favour of the respondents on 28-9-1981. However, the department filed an appeal before the Division Bench of the High Court. Therefore, the assessee to safeguard their interest kept on paying duty on the higher value under protest considering their main dealers related persons. The department's appeal was dismissed on 7-12-1982 [1983 E.L.T. 2168 (Mad)] by the Division Bench of Madras High Court. The Union of India filed a Special Leave Petition before the Supreme Court, which was also dismissed on 25-11-1983. (ii) The assessee filed refund claim of higher duty paid by them under protest. The department rejected the refund of higher duty paid during the period from 29- 9-1981 to 2-2-1982 on the ground that the refund for this period is time barred under Section 11B since the Single Member Bench of the Madras High Court had already decided the case in the assessee's favour on 28-9-1981 that their main dealers were not related persons and therefore, the fact that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only after the department's appeal was rejected by the High Court vide Order dated 21.2.2006. Limitation will arise only after such a final determination of refund claim by High Court's Order dated 21.2.2006. Till High Court's Order dated 21.2.2006, the question of filing any refund claim does not arise. Thus, the cause of action can only be on the date when Commissioner (Appeals)'s Orders dated 31.12.2001 attained finality by High Court's Order dated 21.2.2006. 3.17 that after an order is passed in the appeal, the order of the lower authority is merged in the order of the appellate authority and hence there being a single order only of the appellate authority. In the present case, the Commissioner (Appeals)'s order dated 30.9.2002 was challenged by the department. However, the said order of Commissioner (Appeals) was upheld by the Tribunal and the High Court. Therefore, the Commissioner (Appeals)'s order dated 30.9.2002 is merged in the order of the Tribunal and the Tribunal's order is merged in the order of the High Court dated 21.2.2006. Therefore, there is only a single order of the High Court dated 21.2.2006. Further, the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The classification list was approved in 1994 on the basis that the assessee's product was classifiable under Sub-Heading 2404.50. The assessee challenged the classification list. The appeal of the assessee was allowed holding that the product is classifiable under Sub-Heading 2404.60. The department however filed appeal before Tribunal. (ii) Meantime, in the same year, on 18.2.1994, the Tribunal in similar case of Lachman Das Bihari Lal Vs. CCE [1994 (71) ELT 728 (T)] decided that the product as classifiable under Sub-Heading 2404.60. The department filed appeal against this decision of the Tribunal before the Hon'ble Supreme Court. (iii) On the basis of the above decision of the Tribunal in Lachman Das Bihari Lal's case, the assessee filed an application for refund of the excess duty paid by it under protest on the basis of the classification of its product under Sub- Heading 2404.50 even though the department's appeal in their own case was pending before the Tribunal as mentioned in supra. (iv) The department denied refund claim on the ground of unjust enrichment. On appeal being filed by the assessee, the Tribunal dismissed the appeal on the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I 15 (SC). The application for refund by the assessee was therefore premature. b. In case of second submission of the assessee, the Supreme Court held-that we have noted the proviso to sub-section (1) of Section 11(B) which says that the period of limitation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which date will the period of limitation start to run? The Supreme Court then held that on the basis of the paragraph 108(iv) of Mafatlal Industries' decision which has been relied upon by the Tribunal it would have to be from the final decision in the assessee's own case, i.e. CCE Vs. Lachman Daas Behari Lal 2004 (163) ELT AI 15 (SC). (viii) It may be noted that the date of mentioned in para 3 of the Supreme Court's decision reported as Dena Snuff (P) Ltd. Vs. CCE 2003 (157) ELT 500 (SC) is 28.8.2003, i.e., the Order date of CCE Vs. Lachman Daas Behari Lal 2004 (163) ELT AI 15 (SC), instead of 28.8.1990 mentioned therein. As can be seen from the above, the decision of the Supreme Court in Dena Snuff (P) Ltd. Vs. CCE - 2003 (157) ELY-500 (SC) supports the submission of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund amount of Rs.4,90,96,420/- claimed for third period, they admit that the provisions of unjust enrichment would apply to refund of Rs.1,17,93,761/- as explained in Additional Commissioner, LTU's Verification Report dated 30.11.2010. Therefore, the appellants is not pressing for refund of Rs.1,17,93,761/- 3.26 that with respect to balance amount, pursuant to the Commissioner (Appeals)'s O-in-A dated 31.12.2001 (issued on 7.1.2002), they filed refund application vide their letter dated 29.7.2002. In this letter, they requested the department to quantify the differential duty/refund and that according to them they are entitled for refund of Rs.4.69 take credit of it. Accordingly, the refund application was in fact filed on 29.7.2002 itself, which is within the time period of one year from the relevant date, i.e. Commissioner (Appeals)'s Orders dated 31.12.2001. 3.27 that the department also acknowledged the above refund claim filed by them. As consequence to the said letter, the Superintendent vide his letters dated 5.8.2002 28.11.2002 sought clarifications. They vide their letter dated 6.1.2003 replied and gave clarifications. However, the department d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority therefore, it cannot be considered as refund claim is also not sustainable under law. The refund claim cannot be rejected for the procedural requirement. Further, the aforesaid objection that refund claim should be addressed to appropriate authority was never raised by the department when all correspondence was going on. The department ought to have directed them after filing letter dated 29.7.2002 only that they are required to address the issue of refund calculation to the appropriate authority. In this they relied on few case laws. 3.32 that the rejection of refund claim on the ground of limitation when earlier refund claim was not considered since it was not in prescribed format or addressed to correct authority is incorrect not sustainable under law. In view of the above, the impugned Order dated 21.10.2015 is not correct same is liable to be set aside on this ground itself. 3.33 that the refund has been sanctioned to them for similar refund claims filed in its own case of clearances from its Kasna and Ankleshwar units. They had filed similar refund claim for their other units at Kasna and Ankleshwar for the clearances made during the period from 22.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in similar circumstances has held as follows: 95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is asssessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under subrule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with interest. 7. The Section 11BB deals with interest on delayed refunds which reads as under :- 11BB. Interest on delayed refunds. If any duty ordered 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. Explanation. Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal (National Tax Tribunal) or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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