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TMI Blog2024 (6) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... n pursuance to the order of the Tribunal dated 18.07.2019 and the Tribunal cannot the examine the said issue in the present Appeals. The said contention of the appellant deserves to be rejected for the simple reason that taking note of their compliance with the requirement to avail the facility of retrospective amendment, the adjudicating authority in the denovo adjudication in the year 2011 recorded payment of said interest and passed the order in favour of the appellant in setting aside the demand of 8%/10% value of the product following the statutory mandate of retrospective amendment incorporated in Section 72 of the Finance Act, 2010 where the condition include reversal of proportionate credit with interest. No mention in the said amendment on the fact of utilisation or otherwise of the credit availed. Therefore, any judgment/Order contrary to the said statutory provisions be per incuriam and cannot be a binding precedent - Besides, no evidence has been brought on record by the Appellant that they had filed refund claim for the interest paid on the proportionate credit reversed after the de novo order in 2011 along with the refund claim for excess credit of Rs.1,00,10,808/- no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of VSF without payment of duty. A part of Rayon Grade Wood Pulp manufactured at factory was also being cleared to independent buyers. The appellants have been availing CENVAT credit of the duty paid on inputs which were captively consumed in the manufacture of VSF and Rayon Grade Wood Pulp. A show-cause notice was issued to them on 14.12.2004 demanding Rs.15,16,35,274/- being 8% or 10% of the value of the Rayon Grade Wood Pulp cleared to their Nagda unit since the appellant failed to maintain separate accounts for inputs used in the manufacture of exempted goods and dutiable final products as per Rule 6(3)(b) of CENVAT Credit Rules, 2004. The appellant reversed the input credit of Rs.1,91,93,628/- availed on the inputs on 06.11.2007 under protest. The said show-cause notice was adjudicated confirming the demand of Rs.15,16,35,274/- with interest and penalty by the Commissioner. Aggrieved by the said order, the appellant filed an appeal before this Tribunal and by order dated 19.08.2010, the Tribunal remanded the matter to the adjudicating authority to redetermine the liability in the light of retrospective amendment to the CENVAT Credit Rules, 2002/2004 by the Finance Act, 2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance excess credit of Rs.1,00,10,808/- for not following the proper procedure, the Appellant had filed refund application for the said amount of Rs.1,00,10,808/- under Section 11B of the CEA, 1944 on 17.06.2011. On adjudication, the refund claim was rejected by the adjudicating authority observing it was not paid under protest; however, it was also observed that principles of unjust enrichment is not applicable to refund of CENVAT credit. Consequently, the Appellant as well as Revenue filed appeal before the learned Commissioner (A). The Ld. Commissioner (A) remanded the cases to the adjudicating authority to decide the same in the light of Tribunal Order 18.07.2019. In de novo proceeding, the adjudicating taking note of the sanction of Refund of Rs.1,00,10,808/- vide Order dated 20.11.2019, dropped the proceedings. Aggrieved, the Appellant filed appeal before Commissioner (A) and by Order-in-Appeal No.189/2020-21 CT dated 22.03.2021 it was rejected. Hence, the present Appeal. 3. Learned advocate for the appellant has submitted that appellant is entitled for recredit/refund of the excess reversal of Rs.1,00,10,808/- and interest of Rs.88,22,475/- paid on the amount of Rs.83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of interest on delayed refund of Rs.1,00,10,808/-, the learned advocate has submitted that the appellant is entitled to interest from 17.09.2011, being three months from the date of filing of the original refund claim to 21.11.2019, being the date of payment of the amount. He has submitted that the Order-in-Original No.9/2011 dated 21.04.2011 did not confirm any duty against the credit of Rs.1,00,10,808/- reversed by the appellant. Further, the said order did not appropriate the excess credit reversed towards any duty, therefore CENVAT credit of Rs.1,00,10,808/- is refundable to the appellant pursuant to the said order. Accordingly, they filed refund claim on 17.06.2011, hence, interest is payable in terms of Section 11BB of CEA, 1944. 3.2 Further, he has submitted that the appellant vide letter dated 28.03.2019 requested the department to sanction the refund consequent to the Order of the Tribunal has only sought to inform to the department about the Final Order dated 18.07.2019 passed by the Tribunal and it is only for confirming that the appellants are eligible for refund of interest amount, hence the date of the Final Order of CESTAT cannot be adopted as date for calculation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate credit in compliance of the remand Order of the Tribunal dated 19.08.2010. He has further submitted that even though the Tribunal in the Order dated 18.7.2019 recorded a passing remark about interest is not warranted, however, no direction was issued to the department for refund of the interest. 4.1 He has submitted that the authorities below after analysing the earlier order dated 19.08.2010 and subsequent order and the facts of the case, came to the conclusion that interest is not refundable. It is not making out a new case at this stage but all facts are recorded and part of the multiple proceedings arising out of the same issue pending before various fora from time-to-time. Therefore, cumulatively considering all aspects of the case the refund of interest of Rs.88,22,475/- if allowed, it would be contrary to the statutory provisions of Section 72 of the Finance Act, 2010 and the first Order of Tribunal dt.19.8.2010. Further, he has submitted that interest on refund amount of Rs.1,00,10,808/- is applicable only after the Final Order dated 18.07.2019 was passed by the Tribunal and not from the date of filing of refund claim. 5. Heard both sides and perused the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, then, notwithstanding anything contained in sub-rules (1) (2) and (3), a manufacturer availing CENVAT credit in respect of any inputs, except inputs intended to be used as fuel, and manufacturing final products which are exempted goods, may pay an amount equivalent to CENVAT credit attributable to the inputs used in, or in relation to the manufacture of, exempted goods before or after the clearance of such goods: Provided that the manufacturer shall pay interest at the rate of twenty four per cent per annum from the due date till the date of payment of the said amount. Explanation For the purpose of this sub-rule, due date means the 5th day of the month following the month in which goods have been cleared from the factory. In the circumstances, we allow the appeal filed by M/s. Grasim Industries Ltd. by way of remand. The impugned order is set aside. The assessee is free to raise all the relevant grounds. 8. Thus, the Tribunal taking note of the retrospective amendment to Rule 6 of CCR, 2004/2002 by Finance Act, 2010 remanded the matter to the adjudicating authority for de novo adjudication. After the Final Order dated 19.08.2010 of the Tribunal remanding the matter, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 2010 giving retrospective effect by amending Rule 6 of the CENVAT Credit Rules, 2002/2004 allowing the assesses to reverse proportionate credit with applicable interest to settle the litigation saddled with huge amount of demands on 8% / 10% of the value of the exempted product, the refund of the said interest still be allowed in pursuance to the order of the Tribunal dated 18.07.2019 and the Tribunal cannot the examine the said issue in the present Appeals. The said contention of the appellant deserves to be rejected for the simple reason that taking note of their compliance with the requirement to avail the facility of retrospective amendment, the adjudicating authority in the denovo adjudication in the year 2011 recorded payment of said interest and passed the order in favour of the appellant in setting aside the demand of 8%/10% value of the product following the statutory mandate of retrospective amendment incorporated in Section 72 of the Finance Act, 2010 where the condition include reversal of proportionate credit with interest. No mention in the said amendment on the fact of utilisation or otherwise of the credit availed. Therefore, any judgment/Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 becomes payable, if on an e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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