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TMI Blog2024 (12) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... interest payable to the petitioner to consider the amount deposited as deposit as the said amount has thereafter been adjusted against outstanding demand which was quantified by the respondent-authority while passing the Order-in-original. Even the Commissioner (Appeals) upheld the Order-in-original and only after the CESTAT allowed the appeal of the petitioner, the petitioner was entitled to the refund of the amount duty which was adjusted form the amount deposited by the petitioner under protest. This Court, in case of KAMAKSHI TRADEXIM (INDIA) PVT. LTD. AND 1 VERSUS UNION OF INDIA AND 1 [ 2017 (4) TMI 223 - GUJARAT HIGH COURT] following the decision of Ranbaxy Laboratories (Ltd) (supra), has held that from a bare reading of Section 11B (2) and 11BB of the Act, it is clear that if the concerned authority was satisfied on the claim of the applicant of refund, then the refund was to be paid within three months from the date of the receipt of the application for refund and if it was not so paid then interest had to be paid on it under Section 11BB of the Act. The contentions raised on behalf of the petitioner that the petitioner is entitled to interest from that date of deposit mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Superintendent of Central Excise (Preventive) whereby the petitioner was asked to pay amount of Rs. 22,93,439/- towards central excise duty alleging that the petitioner had cleared the finished goods without including the value of sales tax paid on raw materials in the assessable value of goods manufactured on job work basis. The petitioner thereafter, as per the aforesaid letter, paid the amount of Rs. 10 Lakh vide Challan dated 31.12.2005 and the remaining amount of Rs. 12,93,439/-by Challan dated 22.02.2006 under protest. 4.2 It appears that thereafter, show-cause notice dated 10.05.2006 was issued by the Deputy Commissioner calling upon the petitioner as to why excise duty of Rs. 22,93,439/- along with interest and penalty should not be levied upon the petitioner. By Order-in-original dated 13.12.2006, a demand of Rs. 22,93,439/- along with interest and penalty was confirmed by the Deputy Commissioner of Central Excise. 4.3 Being aggrieved, the petitioner preferred appeal before the Commissioner (Appeals) who, by order dated 30.03.2007, dismissed the appeal filed by the petitioner confirming the Order-in-original for levy of the excise duty of Rs. 22,93,439/- along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the said amount and therefore, the amount which was deposited by the petitioner would continue as deposit . Reliance was placed on the Circular dated 16.09.2014 of Central Board of Excise and Customs (CBEC) in support of his submissions. 5.1 It was submitted that the provision of section 11B of the Act would not be applicable as amount deposited by the petitioner was ultimately found to be not payable as per the order passed by the CESTAT and accordingly, the petitioner would be entitled to the interest from the date of deposit and not as per the provision of section 11BB of the Act. It was therefore submitted that the provision of section 11BB of the Act would also not be applicable. 5.2 It was further submitted that as per the Circular dated 16.09.2014, CBEC has recognized the principle of restitution of the amount deposited during investigation by providing interest from the date of deposit as per paragraphs 3.2, 5.1 and 5.2 of the said Circular which was issued in the context of amended provision of section 35F of the Central Excise Act,1944 and section 129E of the Customs Act,1962 which were brought into effect from 06.08.2014 which mandatorily requires pre-deposit of 7.5% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount on clearance of the same goods, in the facts of the said case, did not amount to deposit of excise duty and was a pure mistaken deposit of an amount with the Government which the Revenue cannot retain or withhold and such claim would not fall within section 11B of the Act. 5.6 It was therefore submitted that the observation of the Hon ble Apex Court in case of Mafatlal Industries Ltd(supra) would not be applicable in the facts of the present case. Reliance was also placed on the decision of the Hon ble Apex Court in case of Commissioner vs. KVR Construction reported in 2018 (14) G.S.T.L. J 70 (S.C) to submit that reliance placed by the CESTAT on the decision of the Apex Court in case of Ranbaxy Laboratories Ltd (supra) is misplaced as the Hon ble Supreme Court in the said decision was only essentially concerned with the relevant date of granting interest on refund of duty in terms of section 11BB of the Act and there was no issue before the Hon ble Supreme Court with regard to date of interest on return of deposit as is in the case of the petitioner. 5.7 It was therefore submitted that the refund granted under section 11B of the Act is also misplaced as it is not in dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooting that processing of cotton fabrics is an excisable activity covered by them 68. Item 68 refers to All other goods not specified elsewhere manufactured in a factory. Therefore processed cotton fabrics and processed man-made fabrics were manufactured in the factories of the petitioners and since they are not covered by Item 19 or 22 of the Schedule, they are liable to pay ad valoren duty only in respect of the value added by them at the time of processing because the only manufacturing activity which they have done is the manufacturing of processed fabrics from which was already in existence. The Excise authorities are therefore directed to calculated the ad valorem excise duty during the period of three years immediately preceding the institution of each petition before us and calculate the excise duty payable by each of these petitioners under Item 68 only in respect of the value added by each of the petitioners by the processing of the concerned. The excise duty paid in excess of such ad valorem duty under Item 68 during the period of three years immediately preceding the institution of the respective Special Application is ordered to be refunded to the petitioners concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the decision of Futura Ceramics Pvt Ltd Vs. CCE ST, Vadodara -1, Final Order No. A/13764/2017 dated 21.11.2017 whereby the Hon'ble CESTAT was of opinion that the assessee shall be entitled to refund of the amount deposited during the investigation from the date of deposit till the date of realization of refund. It is respectfully submitted that in the present case of Petitioner, the decision of Futura Ceramics Pvt Ltd is not applicable as the facts of the present case are different. It is respectfully submitted that in the present case, the refund to the petitioner was sanctioned under Section 11B of the Central Excise Act, 1944, and that on the issue of interest on refund of duty the Honorable Supreme Court in the case of Ranbaxy Laboratories Ltd. Vs. Union of India (2011 (273) E.L.T. 3 (S.C.)} has held that the interest on refund under Section 11B is payable only from the date of expiry of three months from the date of receipt of application for refund. It is further submitted that in case of Futura Ceramics Pvt Ltd, the Hon'ble CESTAT has not considered the judgement of Ranbaxy Laboratories Ltd and Kamakshi Tradexim (India) Pvt. Ltd. [2017 (351) ELT 102 (Guj)]. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswering respondent relies on following judgments: A. Judgment of the Hon'ble Supreme Court in the case of Ranbaxy Laboratories Ltd. Vs. Union of India [2011 (273) E.L.T. 3 (S.C.)]. For the sake of convenience, Para 9 of the said judgement is reproduced below: 9. Section 11B 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 pard 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 of 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 shall be deemed to be an order under sub-section (2) of Section 11B of the Act. It is clear that the Explanation ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 102(Guj)}. For the sake of convenience, Para 8 of the said judgement is reproduced below : 8. Thus, the Supreme Court, in the above decision has clearly held that the liability of the Revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which the order of refund is made. Under the circumstances, the contention advanced by the respondents that the orders sanctioning rebate having been passed and the amount having been paid within the time limited stipulated by the High Court in its judgment and order dated 18-2-2016 made in Special Civil Applications No. 14616 of 2015 and No. 14617 of 2015, the petitioners are not entitled to interest under Section 11BB of the Act, cannot be countenanced even for a moment. In the facts of the present case, initially the respondents had kept the rebate claims of the petitioners in abeyance, due to which the petitioners were constrained to approach this Court and with a view to obviate any further delay in deciding the application, in the light of the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India (Supra), where specific application is made under Section 11B (2) of the Central Excise Act 1944 for interest on delayed refund then the same had to be considered and decided by the authority in the light of the provisions of Section 11B (2) as well as Section 11BB of the Act, as Section 11BB provides interest for delayed refund of duty and not of deposit. It was held that the authority was, therefore, right in rejecting the refund on delayed refund. The Hon ble High Court held in para 11 of the judgment that, from a bare reading of Section 11B (2) and 11BB of the act, it is clear that if the concerned authority was satisfied on the claim of the applicant of refund, then the refund was to be paid within three months from the date of the receipt of the application for refund, then the refund was to be paid within three months from the date of the receipt of the application, and if it was not so paid then interest had to be paid on it under Section 11BB of the Act. This decision of the Hon'ble Gujarat Court fortifies the conclusion that the claim for interest made by the appellant in respect of the refund of the deposited amount was not maintainable under Section 11BB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 71. 8. At the outset, we are of the opinion that merely because the petitioner was compelled to pay the amount of Rs. 22,93,439/-by the respondent prior to issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. 10. It is a well settled proposition of law that a fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision; there is nothing to be read in; nothing to be implied and there is no room for any intendment. (See: Cape Brandy Syndicate Vs. Inland Revenue Commissioners and Ajmera Housing Corporation Anr. Vs. Commissioner of Income Tax5.) 4 [1921] 1 K.B. 64 5 (2010) 8 SCC 739. 11. At this juncture, it would be apposite to extract a Circular dated 1st October 2002, issued by the Central Board of Excise Customs, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims within three months from the date of receipt of application. Accordingly, jurisdictional Commissioners may devise a suitable monitoring mechanism to ensure timely disposal of refund/rebate claims. Whereas all necessary action should be taken to ensure that no interest liability is attracted, should the liability arise, the legal provision for the payment of interest should be scrupulously followed. (Emphasis supplied) 12. Thus, ever since Section 11BB was inserted in the Act with effect from 26th May 1995, the department has maintained a consistent stand about its interpretation. Explaining the intent, import and the manner in which it is to be implemented, the Circulars clearly state that the relevant date in this regard is the expiry of three months from the date of receipt of the application under Section 11B (1) of the Act. 13. We, thus find substance in the contention of learned counsel for the assessee that in fact the issue stands concluded by the decision of this Court in U.P. Twiga Fiber Glass Ltd. (supra). In the said case, while dismissing the special leave petition filed by the revenue and putting its seal of approval on the decision of the Allahabad High Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the expiry of the said period from the date on which order of refund is made. 10. This Court, in case of Kamakshi Tradexim (India) Pvt Ltd Vs. Union of India reported in 2017 (351) ELT 102 (Guj), following the decision of Ranbaxy Laboratories (Ltd) (supra), has held that from a bare reading of Section 11B (2) and 11BB of the Act, it is clear that if the concerned authority was satisfied on the claim of the applicant of refund, then the refund was to be paid within three months from the date of the receipt of the application for refund and if it was not so paid then interest had to be paid on it under Section 11BB of the Act. 11. Decision relied upon by the petitioner in support of the submissions that the amount deposited by the petitioner in the Year 2005 would continue as deposit as ultimately the petitioner had succeeded before the CESTAT is not tenable because in the intervening period i.e. from the date of deposit till the date of passing of the order by the CESTAT, the amount deposited by the petitioner has never remained as deposit but it has been adjusted towards the outstanding dues which was quantified in the Order-in-original. The petitioner, at no point of time, has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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