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TMI Blog2023 (8) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... the Section 3A (4) hence this provision is not applicable for processing the refund application. The Annual Capacity was fixed at 43174.72 MT and the appellant was paying the monthly duty accordingly. After successive round of litigations the capacity as determined by the order dated 21.03.1998 was revised to 32670.848 MT by the order dated 31.12.2010. This refund which has arisen on account of the above revision cannot be said to refund under the provisions of scheme of Section 3A. The order of Commissioner (Appeal) which has been made without taking the note of above facts cannot be upheld. Tribunal has no jurisdiction to prescribe the rate of interest which is prescribed by the Government of India in terms of Notification issue under Section 11BB. The request appellant for interest on the refund will have to be considered only in terms of Section 11BB of the Central Excise Act, 1944 and in the manner as prescribed by the said section. Accordingly the appeal filed by the appellant is to be partly allowed to extent of interest due to them in terms of section 11BB taking the date of filing the application for refund as 06.09.2010. The appeal is partly allowed. - HO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in Shree Bhagwati Steel Rolling Mills has to succeed. On this ground alone therefore, the impugned judgment is set aside. That none of the other provisions of the Central Excise Act can come to the aid of the Revenue in cases like these has been laid down by this Court in Hans Steel Rolling Mill v. CCE, (2011) 3 SCC 748 = 2011 (265) E.L.T. 321 (S.C.) as follows : 13. On going through the records it is clearly established that the appellants are availing the facilities under the compound levy scheme, which they themselves opted for and filed declarations furnishing details about the annual capacity of production and duty payable on such capacity of production. It has to be taken into consideration that the compounded levy scheme for collection of duty based on annual capacity of production under Section 3 of the Act and the 1997 Rules is a separate scheme from the normal scheme for collection of Central excise duty on goods manufactured in the country. Under the same, Rule 96-ZP of the Central Excise Rules stipulate the method of payment and Rule 96-ZP contains detailed provision regarding time and manner of payment and it also contains provisions relating to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und interest payable within statutory period - It is only interest provided under statute which can be claimed by assessee from Revenue and no other interest on such statutory interest. 4.6 Since in this case, it is not under dispute that there is no provision under the compounded levy scheme to pay interest on refund, the general provisions of the Central excise Act, 1944 are not applicable (even if applied there is no delay in allowing refund) and the Adjudicating Authority functioning under the Central Excise Act, 1944 was bound by the statute, I, thus find that the Adjudicating Authority has rightly not allowed interest on refund. I also find that that in view of the aforesaid judicial pronouncements, the case laws relied upon by the appellant in their appeal, cannot be applied to this case. 5. In view of the above, I reject the appeal of the appellant. 2. I have heard Shri Ramji Khare Shri S K Vishkarma, learned Advocates for the appellant and Shri Sandeep Pandey, learned Authorized Representative for the revenue. As directed both the sides have filed written submissions which have been taken on record. 3.1 I have considered the impugned order along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order of 21.03.1998 25.06.2010 CESTAT remanded the matter back to the Adjudicating Authority for re-determining the ACP and MDL as per order dated 29.07.2004 06.09.2010 Appellant filed the application for refund claiming Refund of Rs 27,73,130/- 31.12.2010 Adjudicating Authority determined the ACP as 32670.848 MT and MDL as Rs 17,01,607/- 28.04.2011 Assistant Commissioner allowed the refund but directed the same to be credited to Fund, constituted under Section12 C of the Central Excise Act, 1944. 03.01.2012 Commissioner (Appeals) dismissed the appeal filed by the appellant. 07.08.2018 CESTAT allowed the appeal of the appellant along with consequential relief. 10.01.2019 Appellant filed the Final Order of tribunal and requested for the refund due along with interest. 19.03.2019 Assistant Commissioner, allowed the refund of Rs 27,73,130/- unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. In the light of above judgement I find there is no case that the appellants have not passed on the burden on consumers and if such relief is not granted, they would suffer loss. 8. The case laws cited in the appeal are distinguished by Hon'ble High Court, Bombay in the case of Commissioner v. Shree ram Textiles Processing Mills (I) P Ltd reported in 2011 (263) ELT A 140 (Bom), as the CESTAT's Final Order No A/1319/2005-WZB/C-IV dated 30.09.2005 reported at 2006 (193) ELT 485 (Tri) has been set aside with following observations: 1. This appeal was admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of above discussion the observations and findings regarding unjust enrichment forming part of the impugned order-in-original dated 28.04.2011 are sustainable. 12. In view of above I find no reason to interfere with the order in original dated 28.04.2011 and therefore refuse to allow the appeal. 3.5 This order of Commissioner (Appeal) was challenged by the appellant before the tribunal and tribunal has vide final order No 71947/2018 dated 07.08.2018 allowed the appeal filed by appellant with consequential relief if any. Tribunal has held as follows: 2. We find that the larger bench of the Tribunal in the case of Mohinder Stels reported at 2002 (145) ELT 290 (LT) has held that the compounded Levy Scheme is an independent scheme and general provisions are not applicable. the said decision stands followed by the tribunal in the of Commissioner of C Ex Ahmedabad Vs National Ceramic Works reported at 2009 (237) ELT 576 (Tri-Ahmd) laying down that the excess payment made under the Compounded Levy Scheme have to be treated as excess deposits over and above the duty liability under Compounded Levy Scheme and the time limitation of Section 11B is not applicable as the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so re-determined and if the duty already paid falls short of, or is in excess of, the duty so re-determined, the assessee shall pay the deficiency or be entitled to refund, as the case may be. The present case is not a case for redetermination of duty on the basis of actual production in terms of the Section 3A (4) hence this provision is not applicable for processing the refund application. It is worth noting the tribunal has in order of 07.04.2018, held relying on the decision in the case of National Ceramic Works [2009 (237) ELT 576 (Tri-Ahmd)] held that the refund made under compounded levy scheme will not be governed by the provision of Section 11B. Ahmedabad Bench was dealing with the refund claim made under Rule 96 ZB of the erstwhile Central Excise Rule, 1944, which is in pari materia with sub section 5 of Section 3A, reproduced above. The present claim for refund has arisen on the account of Finalization of Annual Capacity of Production, in terms of sub-section 2 of Section 3A, which is lower than the provisional capacity fixed by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 06.09.2010. Section 11BB of the Central Excise Act, 1944 is reproduced below: Section 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 : Provided that where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble High Court in their order dt. 29-8-2002. The decision of the Commissioner (Appeals) is that the refund become admissible only after finalization of APC and hence the date of the fresh claim submitted by the appellant in pursuance of the order of the Hon ble High Court shall be relevant date for the purpose of payment of interest. The above decision of the Commissioner (Appeals) and the reasoning adopted are legal and proper and do not warrant any interference. The present refund claim has been filed only after the Tribunal has set aside the order determining the ACP and remanded the matter back to Commissioner for redetermination on 25.06.2010. Commissioner has then by the order dated 31.12.2010 finalized the annual capacity. 3.11 Board has vide Circular No 1063/2/2018-CX dated 16.02.2018 also clarified as follows: 26. Decision of the Hon'ble High Court of Gujarat dated 20.07.2015 in Tax Appeal No. 381 of 2015 in the matter of CCE, Rajkot vs M/s Tata Chemicals Ltd., Jamnagar = 2015-TIOL-1800-HC-AHM-CX 26.1 Department has accepted the order of the Hon'ble High Court of Gujarat in Tax Appeal No. 381 of 2015 in the matter of CCE, Rajkot vs M/s Tata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this connection usefully refer to a decision of four learned Judges of this Court in the case of The Anant Mills Co. Ltd. etc. etc. v. State of Gujarat others etc. etc. [AIR 1975 S.C. 1234 = (1975) 2 SCC 175]. In that case Khanna, J., speaking for the Court had to consider the question whether the provision of statutory appeal as per Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 which required the appellant to deposit the disputed amount of tax before appeal could be entertained could be said to be in any way violative of Article 14 of the Constitution of India. Repelling the aforesaid challenge to the vires of the said provision the following pertinent observations were made in Para 40 of the Report : ....The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng appeals before CEGAT against the order of Additional Collector of Customs passed under Section 122 of the Act the answer must be found from within the four corners of the Act itself. 10. We have, therefore, to turn to the scheme of the Act providing for appeals. Provision of appeals is found in Chapter XV of the Act. Section 128 deals with `Appeals to Collector (Appeals) and Section 128A deals with `Procedure in appeal . The Appellate Tribunal is constituted as per Section 129 of the Act. Sub-section (1) thereof lays down that, `the Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act . It is, therefore, obvious that the Appellate Tribunal CEGAT is a creature of statute and derives its jurisdiction and powers only from the statute creating it and not outside the same.... 3.14 In view of the above decision Tribunal has no jurisdiction to prescribe the rate of interest which is prescribed by the Government of India in terms of N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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