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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 ..... umarapatnam and captively consumed in the manufacture of VSF. Also, a portion of said Rayon Grade Wood Pulp had been cleared to their Nagda unit for use in the manufacture 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (A) who in turn rejected their appeal. Hence, the present appeal. Appeal No.20465 of 2021 2.5 Pursuant to the de-novo Order dated 2011, denying the re-credit of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Union of India vs. Ind-Swift Laboratories Ltd.: 2011 (265) ELT 3 (SC) relied in the impugned order is not applicable to the facts of the present case. 3.1 On the issue 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 2010. It is his contention that the appellants all along have been accepting liability of interest being part of the compliance of Section 72 of the Finance Act, 2010 being paid along with 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 amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the period beginning on the 1st day of March, 2002 and ending with the 9th day of September 2004 (both day inclusive) is pending on the date on which the Finance Bill, 2010 receives the assent of the President, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r worked out to Rs.88,22,475/- which was paid by the assessee against e-challan No.00006 dated 22.10.2004. 9. The claim of the appellant that even though the amount of interest has been paid in compliance with Section 72 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in the case of Ranbaxy Laboratories Ltd. (supra). In the said judgment, the Lordships observed as follows: "9. It is manifest from the afore-extracted provisions that Section 11BB of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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