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TMI Blog2024 (12) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... us transmission equipment and parts thereof falling under Chapter Heading No. 8517 of the first schedule to the Central Excise Tariff Act, 1985(5 of 1986). They were engaged in clearing their goods mainly to BSNL a Public Sector Undertaking. 2.3 They filed a refund claim of Rs. 56,97,591/- before the Assistant Commissioner, Central Excise, Division-1, Allahabad vide their application dated 30.04.2010 for the period May'2009 to July2007. This refund claim was rejected by the Assistant Commissioner vide Order-in-Original dated 31.10.2011. The appellant's appeal was also rejected by the Commissioner (Appeals) vide O.I.A. dated 29.02.2012. The appellant preferred an appeal before CESTAT who vide its Final Order No, A/72676/2018-EX (DB) dated 19.11.2018 allowed the appeal of the appellant by the way of remand. 2.4 The Hon'ble Tribunal's order had been accepted by the department. In compliance to the Tribunals order dated 19.11.2018, the Deputy Commissioner, CGST & Central Excise, Div-l, Allahabad finalized the assessment for the period May'2009 to July'2007, vide Final Assessment Order No. 26-CE/ AC/Div-1/ Refund/2021-22 issued under C. No. V(18jRefund/ITI/Div- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the submissions made in appeal and during the course of argument. 4.2 Impugned order, records findings as follows: 4.1 have gone through the facts of the case and all other material/ documents available on records. I observe that the Section 11BB of the Central Excise Act deals with interest on delayed refunds. Since this provision is relevant, the same is extracted hereunder:- "Section 11-BB 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 subsection (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 1 1B in respect of an application under sub-section (1) of that section made befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any intendment. On the basis of the above provisions, Supreme Court clarified that the liability of the revenue to pay interest under section 11BB of the Central Excise Act commences from the date of expiry of three months from the date of receipt of application for refund under section 11B(1) and not on the expiry of three months from the date on which order of refund is made. 4.3 Thus, what can be culled out from the above is that if an application for refund is made, the same is required to be adjudicated within three months of receipt of the application. But if the refund is granted after three months of receipt of the application, then the applicant would be entitled to interest on such delayed refund. 4.4 The appellant has contested that they are entitled to get interest after three months from 30.04.2010 i.e. initial dated of filing of refund application. I observe that in the instant case the Hon'ble CESTAT Allahabad Final Order No A/72676/2018-EX|DB] dated 19.11.2018 has directed the adjudicating authority to first finalize the provisional assessment and then decide the refund claim filed by the appellant. In compliance to said final order of the Hon'ble CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of duty payable and duty paid, it was found that duty the extent of Rs.56,97,591/- (Basic Excise duty Rs.55,31,647/- + Ed. Cess Rs.1,10,629/- + S.H. Ed. Cess Rs.55,315/-) has been paid in, excess. Consequently the refund claim for Rs.56,97,591 /- was filedi on 30/04,2010 2. Show cause notice was issued vide C. No. V(18) Refund/ITI/DIV-I/29/ 10/ 1249 dated 16/09/201 proposing to deny refund claim inter alia on the ground (i) that the appellants have not submitted any request letter for granting provisional assessment during the relevant period; (ii). that the appellants have not proved that incidence of duty has not been passed on to the buyers 3. Assistant Commissioner rejected the refund claim vide Order-in-Original No:04/Refund/2011 issued vide C.NO. V(18) Ref./171/DIV-1/29/10/2029 dated 31/10/2011 4. On appeal the Commissioner (Appeals) rejected the appeal vide. Order-in-Appeal No.24/CE/ALLD/2012 issued vide C No. 164/CE/APPL/2011/ 1435 dated 01/03/2012. Hence the present appeal 5. The issue involved in the present appeal is as the assessments were provisional or not; as to whether evidence stand produced by the appellant prove excess payment and refund wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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