Whether interest is allowed on the delayed sanction of refund claim by the concerned authority to the assessee?

CASE STUDY

Prepared By: Prateeksha Jain & CA Seema Jangid

Introduction:-
M/S BHANSALI ENGINEERING POLYMERS LIMITED.
[ORDER IN APPEAL NO. 6-8(CKJ)CE/UDR/2017 DATED 22.05.2017]

Relevant Legal Provisions:

Section 11BB of Central Excise Act, 1944
Rule 18 of the Central Excise Rules, 2002
Section 11B of the Central Excise Act, 1944.
Board’s Circular no. 670/61/2002-CX dated 01.10.2002
37B of Central Excise Act, 1944

Issue Involved:- Whether interest is allowed on the delayed sanction of refund claim by the concerned authority to the assessee?

Brief Facts:-
                     M/s Bhansali Engineering Polymers Ltd. (hereinafter referred to as appellant) are manufacturer of Styrene Acrylonitrile (SAN) Co-polymers and ABS Ter polymers falling under sub-heading No. 3903 of the First schedule to the Central Excise Tariff Act, 1985. Appellant are holder of Central Excise Registration no. AAAC3368HXM003.
                     The appellant had filed rebate claim of under Rule 18 of the Central Excise Rules, 2002 with respect to export made in the month of November, 2011 and April, 2011 on 09.04.2012.
                     However, show cause notice was issued to deny the rebate claims filed by them on the ground that they have simultaneously claimed the benefit of advance authorisation and rebate claim.
                     Aggrieved by the impugned order in originals, they filed appeal to the Commissioner Appeals wherein their appeals were allowed.                    Subsequently, the appellant filed a refund claim on 31.01.2014 for interest on delayed sanction of refund claim that was initially filed by them on 09.04.2012. Thereafter a show cause notice was issued to the appellant proposing to reject the refund claim of interest for delayed sanction of refund. Aggrieved by the order in original, the assessee filed appeal to the Commissioner Appeal.

Appellant’s Contentions:-The appellant submit that the impugned Order in Original issued by the Adjudicating Officer is wholly and totally erroneous and is liable to be set aside.

The appellant submits that they are eligible for interest on delay in sanction of rebate claim to them without any doubt as the issue has been decided in their favour by the Apex Court in the case of M/s Ranbaxy Laboratories Ltd. having citation as [2011 (273) E.L.T. 3 (S.C.) = 2012 (27) S.T.R. 193 (S.C.)] and in the case of J.K. Cement Works having citation as [2005 (179) E.L.T. A150 (S.C.)]. However, the impugned order in original has been passed without considering and distinguishing the ratio laid down by the Supreme Court in the above cited decisions. As such, the impugned order in original that has been passed ignoring the interpretation confirmed by the Apex Court is void ab initio and deserves to be quashed. The synopsis of the above cited decisions are produced for the sake of convenient references as follows:-

Ranbaxy Laboratories Ltd. Vs Union of India [2011 (273) E.L.T. 3 (S.C.)= 2012 (27) S.T.R. 193 (S.C.)]wherein it has been concluded as follows:-

Interest on delayed refund - Interest on delayed refund is payable under Section 11BB of Central Excise Act, 1944 on the expiring of period of three months from the date of receipt of application under Section 11B (1) ibid and not from the date of order of refund or Appellate Order allowing such refund - Explanation to proviso to Section 11BB ibid introduces a deeming fiction that where order for refund is not made by Asstt. Commissioner/Dy. Commissioner, but by Appellate Authority, such appellate order shall be deemed to be an order under Section 11B (2) ibid - This explanation does not postpone the date from which interest becomes payable to under Section 11BB ibid- It is manifest from the provision of Section 11B of Central Excise Act, 1944. - 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 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 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 Section 11B 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. [2009 (243) E.L.T. A27 (S.C.) followed, 2008 (230)E.L.T.199 (S.C.) explained, C.B.E. & C. Circular No. 670/61/2002-CX., dated 1-10-2002 referred, Delhi High Court decision dated 18-12-2009 in Ranbaxy Laboratories Ltd. v. UOI - W.P. (C) No. 13940 of 2009 overruled and 2008 (229)E.L.T.498 (Bom.) approved]. [paras 9, 10, 14, 15]

Assistant Commr. Vs. J.K. Cement Works[2005 (179) E.L.T. A150 (S.C.)]:-

The Supreme Court in this case dismissed the special leave petition filed by the revenue department and confirmed the finding of the Rajasthan High Court wherein it was held that liability to pay interest on delayed refund is not to adjudicative decision and interest is to be paid if it is found payable after expiry of three months from the date of making application of refund.

In light of the above cited decisions of the Supreme Court, it is crystal clear that the liability to pay interest is to be reckoned from the date of receipt of application for refund claim and not from the date of order adjudging the admissibility of refund claim. As the sole ground to deny the refund of interest claim in the present case is that the refund has been sanctioned within 3 months from the date of order of Commissioner Appeals confirming the eligibility of rebate claim filed by the appellant, the ratio of the above cited cases is squarely applicable and the benefit of the above two decisions should be extended to the appellant. Therefore, the impugned order in original denying the claim for interest on delayed sanction of the refund claim deserves to be quashed and the appeal should be allowed.

The appellant has contested that the provision for interest on delayed refund is contained in section 11BB of the Central Excise Act, 1944 and interest on delayed refund is admissible after the expiry of 3 months from the date of filing the refund application and the date of passing of the order in appeal by the Commissioner Appeals is not at all relevant because the interest on delayed refund is admissible after expiry of 3 months from the date of filing the refund application. In respect of this contention, the impugned order in original has referred to the provisions for interest on delayed refund as has been prescribed under section 11BB of the Central Excise Act, 1944 which states that “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.” Further, the order states that the expiry date cannot exist without starting date. Therefore, for calculation of expiry of three months period, relevant starting date should be present. Thereafter, provision of section 11B (1) and the relevant date as prescribed under explanation to section 11B of the Central Excise Act, 1944 for filing of refund claim was referred. It has been stated that as per section 11B (1) of the Central Excise Act, 1944, “Any person claiming refund of any duty of excise and interest, if any, paid on such duty, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise before expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty and interest, if any paid on such duty had not been passed on by him to any other person. Furthermore, it was contended that the relevant date for computation of expiry of one year period for filing of refund claim has been prescribed in the explanation to section 11B and as per this explanation, in the cases where duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, appellate tribunal or any court, relevant date shall be “the date of such judgement, decree, order or direction”. Therefore, it was held that the relevant date in the present case is 24.05.2013, i.e. the date of order in appeal no. 55-56 (VC) CE/JPR-II/2013 and the appellant has filed the consequential refund claim on 12.06.2013, which was adjudicated on 16.08.2013, i.e., well within the period of three months from the date of filing the consequential refund claim. Therefore, it was held that there was no delay in finalising the consequential refund claim and the order was passed well within the prescribed period of three month. Therefore, the contention of the appellant is not acceptable and the refund claim is liable to be rejected.

In this regard, the appellant submits that a totally absurd and erroneous interpretation of section 11B and section 11BB has been taken by the impugned order in original. The correct interpretation of the said section 11B and section 11BB is explained as follows:

In order to better analyse the provisions of section 11B, the said section is produced hereunder for the sake of convenient reference as follows:-

SECTION 11B.  Claim for refund of duty and interest, if any, paid on such duty—
(1)Any person claiming refund of any duty of excise  and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise  and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person :
Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :
Provided further that] the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest.
(2)   If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to –

(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(b) unspent advance deposits lying in balance in the applicant’s account current maintained with the Commissioner of Central Excise;
(c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;
(d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(f)   the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify :
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person.
(3)   Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).
(4)   Every notification under clause (f)  of the first proviso  to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
(5)   For the removal of doubts, it is hereby declared that  any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.
[Explanation. — For the purposes of this section, -
(A)    “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(B)     “relevant date” means, -
(a)   in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, -
(i)     if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or
(ii)    if the goods are exported by land, the date on which such goods pass the frontier, or
(iii)    if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;
(b)   in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
(c)    in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d)    in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
(e)    in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;
(ea)  in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;
(eb) in case where duty of excise is paid provisionally under this Act or the rules made there   under,  the date of adjustment of duty after the final assessment thereof;
(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;
            (f)     in any other case, the date of payment of duty.
The provisions of section 11B as relevant to the present appeal are summarized in simple terms as follows:-

Any person claiming refund of any excise duty or interest may make an application for the refund of such duty to the Assistant Commissioner before expiry of one year from the relevant date in the manner as prescribed along with documentary evidences.

Refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India thereby meaning that rebate claims filed under Rule 18 of the Central Excise Rules, 2002 is also covered by the provisions of section 11B of the Central Excise Act, 1944.

The meaning of relevant date under different situations has been given in Explanation (B). Hence, the time limit of filing refund under different circumstances/situations is governed by separate provisions.

The appellant submits that the rebate claim filed by them pertained to excise duty paid on clearance of finished goods that were exported. Accordingly, the relevant date for them was covered by clause (a) which prescribes the relevant date in case of goods exported out of India and where refund of excise duty paid on goods that are exported is being claimed. In such a case, it is specified that the relevant date shall be the date of “let export order”. As such, the original refund claim filed by the appellant on 09.04.2012 was within the prescribed time limit of one year from the relevant date, i.e., the date of let export order. Accordingly, the relevant date in the present case for the original refund claim filed by us was the date of let export order.

Now, coming to the allegation of the impugned order in original wherein it has been stated that the relevant date is covered by the clause (ec) holding that where the duty becomes refundable as a consequence of judgment, decree, order, or direction of appellate authority, appellate tribunal or any court, the date of such judgment, decree, order or direction shall be the relevant date. The appellant submits that the impugned order in original is erroneously considering the consequential refund claim filed by them pursuant to the order in appeal passed by the Commissioner Appeals for determining the relevant date. In this respect, it is clarified that the dispute was originally started by the revenue department wherein the rebate claim rightly filed by the appellant on 09.04.2012 was proposed to be rejected on procedural grounds and improper analysis of the provisions of Central Excise Laws. Thereafter, the appellant preferred appeal to the Commissioner Appeals in order to justify the fact that they are rightly eligible to claim rebate of excise duty paid on the finished goods exported by them. Consequently, as their submissions were accepted by the Commissioner Appeals, the order in original passed by the adjudicating authority denying the rebate claim originally filed by the appellant on 09.04.2012 was set aside and the appeal was allowed thereby confirming that the appellant are eligible for the rebate claim filed by them on 09.04.2012. In nutshell, the consequential refund claim after order in appeal was “supplementary” and in continuation to the original rebate claim filed by the appellant and so the relevant date will not be determined again by resorting to the provisions of section 11B of the Central Excise Act, 1944. The consequential refund claim filed second time stepped into the shoes of the original consequential refund claim filed by the appellant and there is no need to determine the relevant date again because it is but obvious that no prudent assessee would delay the claim of refund after confirmation of rebate claim by the appellate authority. As such, the relevant date in the present case is that stated in clause (a) which was required to be fulfilled and verified only at the time of original filing of rebate claim. It is also worth mentioning here that if it is logically observed, there cannot be two relevant dates for the “same rebate claim”. Moreover, if the contention of the impugned order in original is accepted, it will lead to absurd interpretation of the statutory legal provisions and would mean that the relevant date for every rebate claim that is sanctioned by way of order of appellate authority would be one year from the date of the order of the appellate authority which would mean that assessees may file rebate claims even for those exports for whom rebate claims are filed beyond the period of one year from the date of let export order. The appellant submits that as there cannot be two relevant dates for same amount of rebate claim, the interpretation taken by the impugned order in original is totally void and absurd and deserves to be quashed at the outset.

Aligning with above it is submitted that hon’ble Supreme Court in the case of British Airways PLC vs Union of India [2002 (139) ELT 6 (S.C.)] has held that while interpreting a legal provision, the court should try to sustain its validity and purpose behind which the same is enacted. Any interpretation which leads to absurd result should be avoided and in case of conflict, harmonious interpretation should be taken. The verdicts of hon’ble Supreme Court are given as follows:-

“8.While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the court to make such construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation.”
An analysis of this decision makes it clear that the various provisions of an enactment should be so interpreted that every provision is effective and if there is any conflict, the harmonious interpretation should be given effect. Similar decision has been given by larger bench of Mumbai Tribunal in the case of CCE, Mumbai -V Vs M/s GTC Industries Ltd [2008-TIOL-1634-CESTAT-MUM-LB.]. The verdicts of hon’ble Tribunal are produced as follows:-
“It is well settled that every clause of the Statute should be construed with reference to the context in which it is issued. A bare mechanical interpretation of words and application of legislative intent is devoid of concept and purpose will reduce most of the remedial and beneficial legislations to futility. To be literal in meaning is to see the skin and miss the soul.
The legislature never wastes its words or says anything in vain and a construction which attributes redundancy to legislation will not be accepted, as has been observed by the Supreme Court in the case of Union of India vs. Hansoli Devi 2002 7 SCC 273”
In view of above decision, any interpretation which leads to redundancy should be avoided. In the instant case, if the interpretation adopted by the impugned order in original is accepted, it will render the provisions of section 11BB of the Central Excise Act as meaningless. As such, extending the ratio of the above decisions, the appeal should be allowed.

It is further submitted that the interpretation which brings harsh consequences on the assessee should not be followed. In this regard attention is also invited towards the ratio of Supreme Court judgment in the case of SNEH ENTERPRISES Versus COMMISSIONER OF CUSTOMS, NEW DELHI [2006 (202) E.L.T. 7 (S.C.)], in which the hon’ble Apex Court has held that:-

“25. While dealing with a taxing provision, the principle of ‘Strict Interpretation’ should be applied. The Court shall not interpret the statutory provision in such a manner which would create an additional fiscal burden on a person. It would never be done by invoking the provisions of another Act, which are not attracted. It is also trite that while two interpretations are possible, the Court ordinarily would interpret the provisions in favour of a tax-payer and against the Revenue.”

The analysis of above decision makes it clear that the interpretation of any provision should not create additional fiscal burden on the assessee. In the instant case, the interpretation of the section 11B read with section 11BB is being made so as to deny the interest on delayed sanction of the refund to the assessee. As such, extending the benefit of the above cited decision, the impugned order in original rejecting our refund claim for interest should be set aside.

Aligning with the above, the appellant also submits that the relevant date of clause (ec) is applicable in cases where the assessee has paid the duty but due to interpretation of law, it is concluded by the appellate authority or court that no duty was payable by the assessee. In such circumstance, as there was ambiguity as regards payment of duty by the assessee and as the assessee could not have filed the refund claim according to any of the other clauses pertaining to the relevant date, the relevant date has been prescribed as the date of such judgment, decree, order or direction. However, this clause (ec) cannot be made applicable in each and every circumstance wherein refund is filed pursuant to the order of appellate authority. It is submitted that the determination of relevant date is to be made after observing the facts and circumstances of each case and cannot be applied on ad-hoc basis on the sweet will of the revenue officers. As detailed above, the relevant date in the present case is aptly governed by the clause (a) of the explanation describing the meaning of relevant date and not by the clause (ec) as contended by the impugned order in original. As such, the basis of rejection of the claim of interest itself is improper and contrary to the provisions of law. Hence, the impugned order in original rejecting the interest claim on delayed sanction of the refund claim deserves to be set aside and the appeal should be allowed.

Aligning with the above, the appellant also submits that if the provisions of section 11BB are pursued, it is also found that the interest for delayed sanction of refund claim is admissible from the expiry of the period of 3 months from the date of receipt of application till the date of actual refund to the assessee. The provisions of the section 11BB are produced for the sake of convenient reference as follows:-

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.

Explanation. - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or any court against an order of the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal, National Tax 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.”

From the submission made in the preceding paragraph, it is very much clear that the original rebate claim was filed by the appellant on 09.04.2012 and the supplementary consequential refund claim filed in consequent to the order of the Commissioner Appeals was filed on 12.06.2013. Accordingly, the rebate claim originally filed by them on 09.04.2012 is to be considered as the rebate claim filed by them under section 11B (1) of the Central Excise Act, 1944. Further, the section 11B (2) as quoted above states that on receipt of the application under section 11B (1), the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise may pass an order for granting the refund claim of the assessee. Also, the explanation to section 11BB states that the order passed by the Commissioner Appeals, National Tax 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.

If the provision of section 11BB, interest on delayed sanction of refund is analysed, it is found that interest is available from the date immediately after expiry of three months from the date of receipt of application till the date of refund of such duty. Now, if the facts in the present appeal are observed, following conclusions are drawn:-

The application for refund/rebate under section 11B (1) was made by the appellant on 09.04.2012.

The order granting rebate for the application filed under section 11B (1) was passed by the Commissioner Appeals on 24.05.2013. Further, as the order passed by the Commissioner Appeals is deemed to be order under section 11B (2) as per explanation to section 11BB and is eligible for interest on delayed refund. Accordingly, the order under section 11B (2) was passed after the expiry of 3 months from the date of receipt of the application under section 11B (1) and so the appellant was eligible for interest as per section 11BB.

It is worth mentioning that there is no need to observe the aspect of limitation in the present case as the original rebate application under section 11B (1) that was filed on 09.04.2012 was within the prescribed time of one year from the relevant date i.e., “date of let export order”.

In light of the above submissions, the appellant is rightly eligible for claiming interest on delayed sanction of refund and the impugned order in original rejecting the same on improper reasoning is liable to be quashed and the appeal should be allowed.

The appellant has further contested that as they have filed the rebate claims within the time limit prescribed in section 11B of the Central Excise Act, 1944, the refund claim should have been granted to them within 3 months, i.e. upto 8 July, 2012. However, show cause notices were issued to deny their rebate claims for procedural infraction of law and on the ground that they have simultaneously claimed the benefit of advance authorisation and rebate claim. The above show cause notices were decided vide order in original no. 108/2012-R dated 3.7.2012 and order in original no. 107/2012-R dated 3.7.2012. Aggrieved by the said order in originals, the appellant filed appeal to the Commissioner Appeals. Consequently, their appeals were allowed vide order in appeal no. 55-56 (VC) CE/JPR-II/2013 dated 24.05.2013 subject to following of other procedures and conditions in this regard. Thereafter, they again filed consequential refund on 12.06.2013 wherein the rebate claims were sanctioned to them vide Order in Original no. 174/2013-R dated 16.08.2013. The appellant has further contested that the date of filing of original rebate claim is to be considered for the purpose of computation of interest on delayed refund under section 11BB of the Central Excise Act, 1944 otherwise the provision of interest contained in section 11BB would become redundant as mostly the consequential refund claim filed pursuant to order of appellate authority is granted within a period of 3 months unless and until the revenue department desires to contest the refund further in higher appellate forum. The appellant has further contested that the “interest” under section 11BB is more or less a compensation for delay in the sanctioning of refund claim filed by the assessee for any reason, whatsoever. The allegations for the rejection of the rebate claim mainly pertained to procedural lapses and absurd reasoning. As such, the appellant were eligible for rebate claim filed by them under Rule 18 on 09.04.2012 itself. Moreover, there was three months time available with the revenue department to clear all their doubts and grant them the rebate claim. But the issue of rebate claim was carried upto the stage of first appellate authority. As such, the assessee cannot be made to suffer on account of baseless allegations of the revenue department in granting the rebate claim when the substantial conditions of the rebate claim stood fulfilled by them. It was also submitted that a period of 3 months was given to the revenue department to effectively process the rebate claims but the said time was wasted in unnecessary litigation. As we know, there is no end of litigation, the assessee cannot be made the victim of dispute created at the end of the revenue authorities. Hence, the date for computation of interest on delayed refund would be the date of original filing of the refund claim by the appellant on 09.04.2012 and not the date of filing of consequential refund on 12.06.2013.

In respect of the above contentions, the impugned order has held that as per section 11B (2) of the Central Excise Act, 1944, “If on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excises and interest, if any paid on such duty by the applicant is refundable, he may make an order accordingly.” The impugned order has stated that as the appellant could not produce sufficient evidence before the adjudicating authority satisfying him the eligibility of refund claim, therefore the adjudicating authority have legally rejected the refund claim vide order in original no. 108/2012-R dated 03.07.2012 and order in original no. 107/2012-R dated 03.07.2012 on the ground that “as per condition no. (v) of the Notification no. 93/2004-Customs dated 10.09.2004, the facility under Rule 18 or Sub Rule (2) of Rule 19 of the Central Excise Rules, 2002 was not available to the licencee getting licence under Advance License Scheme.” Thereafter, aggrieved with the said OIOs dated 03.07.2012, the appellant preferred appeal before the Commissioner (Appeals), Central Excise, Jaipur-II, which is a correct legal procedure. Since, the Commissioner (Appeals), Central Excise, Jaipur-II has decided the appeal in favour of the appellant vide OIA dated 24.05.2013. Consequently, the assessee filed the consequential refund claim on 12.06.2013 which was sanctioned vide Order in Original no. 174/2013-R dated 16.08.2013 i.e., well within the prescribed time. Therefore, it was found that the date of filing of original refund claim which was rejected as the assessee could not produce sufficient evidence before the adjudicating authority satisfying him eligibility of refund claim can never be considered for payment of interest by the department in the instant claim. It was also found that there was no delay in sanctioning the claim at all and the time consumed as contested by the assessee was only because of following the legal and correct procedure laid down by the Central Excise provisions in this regard for which time limit has been prescribed and properly followed in the instant case. Nowhere, there was any intentional or unprocedural delay in allowing the said refund to the assessee. Accordingly, it was found that the question of payment of interest on consequential refund does not arise and therefore the refund claim is liable to be rejected. In this respect, the appellant reiterate that there is no doubt as regards the fact that the appellant had filed their rebate claim on 09.04.2014 and they were rightly admissible for claiming the rebate claim filed on the said date. Moreover, it was not that they were ineligible to claim rebate and the ground for rejecting the rebate claim were already settled in their favour by the higher appellate authorities. Inspite of the fact that there was strong chance of availing the rebate claim, the adjudicating authority refused to accept the submissions made by the appellant and the matter was carried to the Commissioner Appeals. The appellant submits that they do not deny the finding of the impugned order in original that the legal and correct procedure was followed for granting the rebate claim but at the same time they submit that just because the Commissioner Appeals confirmed that the appellant were eligible to claim the rebate claim and the consequential refund claim was filed again, the applicability of the provisions of section 11BB cannot be denied. The appellant submits that they are eligible to claim the interest on delayed sanction of the rebate claim because the provisions of the law permit so. Moreover, the revenue department cannot mould the provisions and make contentions favourable to revenue department. The appellant submits that when the provision of section 11BB does not specifies the reasons of delay for grant of interest to the assessee, interest is admissible to them without any doubt. If the contention of the impugned order in original that the delay was unintentional and was on account of following proper procedure of law is accepted, the provisions of section 11BB of the Central Excise Act, 1944 would be defeated. Moreover, the submission of the appellant that they are eligible for interest on delayed refund is also supported by the Apex Court decision given in the case of M/s Ranbaxy Laboratories Ltd. having citation as [2011 (273) E.L.T. 3 (S.C.) = 2012 (27) S.T.R. 193 (S.C.)] and in the case of J.K. Cement Works having citation as [2005 (179) E.L.T. A150 (S.C.)]. Furthermore, reliance has also been placed on a number of decisions which support that the interest on refund is to be payable from the expiry of three months from the date of receipt of application under section 11B and not from the order deciding the refund claim. The appellant also wishes to place reliance on the latest decision given by the Bangalore Tribunal in the case of SURAJBHAN SYNTHETICS (P) LTD. VERSUS COMMR. OF C. EX., HYDERABAD-IV [2014 (301) E.L.T. 386 (Tri. – Bang.)]wherein it has been held as follows:-

Interest on delayed refundpayable on expiry of three months from the date of receipt of application under Section 11B(1) of Central Excise Act, 1944 - Therefore, interest to be paid calculating three months from that date - Section 11BB ibid. [para 3]

In light of the above decision, the impugned order in original denying the rightly admissible interest on delayed sanction of refund is liable to be set aside and the appeal should be allowed.

The impugned order has held that the issue of grant of interest claimed by the appellant is not considerable under the provisions of section 11B and section 11BB and under OIA no. 556-56 (VC) JPR-II/2013 dated 24.05.2013 (as the OIA has only allowed the rebate claim and no interest was allowed by it). However, it has agreed only with the point of the appellant that notifications and circulars issued by the Board are binding on the departmental officer and they are bound to follow the same. But, it was also held that one has to appreciate the basic purpose of any notification or circular and conclusion should not to draw according to their requirements and use in a manner to get undue benefits. It was held that the appellant has tried to get undue benefit of the provisions of section 11B and section 11BB by not interpreting in true spirit of these provisions and therefore, the assessee’s contention is not sustainable. In this regard, the appellant reiterates the fact that the Commissioner Appeals did not grant interest to the appellant due to the fact that the same was not claimed before them and there is practice of filing refund claims towards the adjudicating authority. The contention that interest on refund has not been granted by the Commissioner Appeals in the Order in Appeal is totally baseless because they have preferred appeal against the order in original confirming the rejection of rebate claims filed by them on certain grounds. The Commissioner Appeals was competent to only decide the eligibility of the refund claim filed by them and to pass an order either sanctioning their refund claim or rejecting the refund claim filed by them and upholding the order in original. The appellant had neither pleaded for granting interest on the refund claim nor had the Commissioner Appeals any power to grant the interest on the delay in grant of refund suo motto because it would then travel beyond the scope of the order in original. As such, merely because the interest claim was not put before the Commissioner Appeals and nothing was contained as regards interest claim in the Order in Appeal cannot be ground to deny the interest claim filed by them subsequently. Moreover, when the refund claim is filed with the adjudicating authority, the interest on delayed refund will also be filed with the adjudicating authority. As such, they have correctly filed the interest claim to the adjudicating authority. In this context, reliance was also placed on the Board’s Circular no. 670/61/2002-CX dated 01.10.2002wherein it has been clarified that the provisions of section 11BB are automatically attracted for any refund sanctioned beyond a period of three months. It was further reported in the above circular that it has been observed that in majority of cases, no reason is cited for non-sanctioning of interest on delayed refund and wherever reasons are given, the same are vague and unconvincing like one of the reason among them being that since the Tribunal had in its order not directed for payment of interest, no interest needs to be paid. The Central Excise Officers were directed not to wait for the instructions from any superior officers or to look for the instructions in the orders of the higher appellate authority for grant of interest. Accordingly, it was clarified that Commissioners may devise a suitable monitoring mechanism to ensure timely disposal of refund/rebate claims and all necessary action should be taken to ensure that no interest liability is attracted. Moreover, if the interest liability arises, the legal provision for the payment of interest should be scrupulously followed. In light of the above cited circular, the contention that the interest was not sanctioned by the order of Commissioner Appeals is a vague reason for rejecting the interest claim and avoiding the interest liability by the revenue authorities. As such, extending the benefit of the above cited circular, the interest claim filed by the appellant should have been processed and sanctioned to them at the earliest possible time. However, this has not been done and rather it has been held in the impugned order in original that although the circulars issued by the Board are binding on the departmental officers and they are bound to follow the same, but one has to appreciate the basic purpose of any notification or circular and conclusion should not be drawn according to the requirements to get undue benefits. In this respect, the appellant submits that a very diplomatic reasoning has been given to disobey the circular quoted by them even when the circular covers the same situation as is in the present appeal. In the above cited circular it has been clearly clarified that the reason that Tribunal had not granted interest cannot be a valid reason to deny the interest otherwise admissible to assessee. Similarly, in the present case, interest has been denied to the appellant on the ground that the Commissioner Appeals has not granted interest to them. As such, the clarification of the circular that interest is to be granted promptly as per the provisions of law has not been considered while passing the impugned order in original. Moreover, the appellant has not tried to take any undue benefit of interest and rather the provisions of section 11B and 11BB have not been interpreted in true spirit by the adjudicating authority. Therefore, the order in original that has been passed on absurd reasoning and in disregard of the circular issued by the board deserves to be quashed and the appeal should be allowed.
Aligning with the above, the appellant submits that the circulars issued by the Board are binding on the departmental officers and they are bound to follow the circulars. This view is supported by the decision given by the Supreme Court in the case of Collector of Central Excise, Vadodara vs Dhiren Chemical Industries [2002 (139) ELT 3 (SC)]. In this decision, hon’ble Supreme Court has held that the order passed by the Revenue in contravention to the clarifications given by the Board is void ab initio. In this case it was held as follows:-

“Departmental clarification - C.B.E. & C. Circulars binding on Revenue even if placing different interpretation then Supreme Court - Regardless of the interpretation that the Court have placed on the phrase “on which the appropriate amount of duty has already been paid”, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue - Section 37B of Central Excise Act, 1944.”

The analysis of this decision makes it clear that while deciding any case, the Board Circulars are to be kept in mind. Since the impugned order in original rejects the interest claim filed by them in contradiction to the above stated Circular, it should be set aside and the refund of interest should be allowed to them.

It is further submitted that the impugned order has held that as regards case laws relied upon by the appellants, the facts are not specific with the present claim and therefore are not applicable. Accordingly, it was held that the instant claim of refund is not admissible and is liable to be rejected. Since the claim is liable to be rejected, therefore, the other aspect, i.e., law of unjust enrichment was not discussed. In this respect, the appellant submits that the case laws relied upon by them in their reply were aptly specific to the circumstances of the present case but they have been simply denied without even assigning any reasons for the same. The case laws relied upon by them are discussed once again so that the issue is determined by following the ratio laid down by the said case laws.

The appellant submits that the order granting the refund claim that was passed by the Commissioner Appeals on 24.05.2013, after a lapse of more than a year, can in no way take away their right to claim interest on the delay in sanctioning of the rightly admissible refund claim to them. In support of their above contention, they place reliance on the decision given in the following cases:-

PARIS WAVES VERSUS COMMISSIONER OF CENTRAL EXCISE-III, HYDERABAD [2008 (225) E.L.T. 118 (Tri. - Bang.)]:-

Interest on delayed refund - Refund claim originally submitted was returned and party went in appeal, the order was in favour of appellant - Date of filing of refund claim cannot change - Refund claims were returned without authority of law and Department has not appealed against that order - Refund claimed was delayed - Appellant entitled for interest in terms of Section 11BB of Central Excise Act, 1944. [para 4.1]
In the above cited case it was held that the assessee was entitled for interest in terms of Section 11BB immediately after expiry of three months from the date of filing the claim till the payment of refund amount to them because it was clear that the refund claim was delayed for some reason or the other. In the present case also, the refund claim filed by the appellant was admissible right from the date of filing and the refund claim was delayed for procedural lapses and absurd allegations. As such, they are also entitled to claim refund of the interest on the delayed payment of refund claim filed by them from the expiry of 3 months from the date of original filing of the refund claim, i.e. 8.7.2012 till the date of payment of the refund claim to them.

KARNATAKA STATE AGRO CORN PRODUCTS LTD. VERSUS C.C.E., BANGALORE [2008 (223) E.L.T. 93 (Tri. - Bang.)]:-

Interest on refund - Relevant date - Interest is always with reference to date of application for refund and not with reference to an order granting refund - Since the provision for grant of interest came into effect only in 1995, the date of payment of interest will start after expiry of three months from the date of which Finance Bill, 1995 received assent of President i.e. 26-5-1995 till the date of payment of refund amount - Section 11BB of Central Excise Act, 1944. [para 4]
In the above cited case, it has been concluded by the Hon’ble Bangalore Tribunal that interest on refund is always with reference to the date of application for refund and not with reference to an order granting refund. Similarly, the refund claim of interest filed by them with reference to the date of application for refund is legal and proper and the same should be allowed.

Similarly, reliance is also placed on the decision given by the Hon’ble Rajasthan High Court in the case of J.K. Cement Works Vs Assistant Commissioner of Central Excise & Customs [2004 (170) E.L.T. 4 (Raj.)] which has also been approved by the Apex Court having citation as [2005 (179) E.L.T. A150 (S.C.)]. The head note of the case is being produced for the sake of reference as follows:-

Refund - Delay - Interest - Liability to pay is not tagged to adjudicative decision that duty was paid in excess or to pay it to assessee instead of crediting it to Consumer Welfare Fund - It is to be paid, if ultimately found payable, after expiry of three months from making of application for refund - Rate of interest to be as prescribed by the C.B.E.C. - Section 11BB of Central Excise Act, 1944. [paras 21, 33, 37, 38]
Interest for delayed refund - Scheme of payment of interest is integrated by reading together Sections 11B and 11BB of Central Excise Act, 1944. [para 23]
In the above cited case the issue was whether the refund claim filed by the assessee was payable to assessee or was required to be transferred to the Consumer Welfare Fund. It was held by the Hon’ble High Court that merely because of the time taken in deciding the issue, the applicant cannot be deprived of the interest on delayed payment of refund which ought to have been paid by the authorities in the first instance within three months of the application for claiming refund. It was held that the payment of interest was linked not to the order under Section 11B (2), but with the application required to be made under Section 11B (1). Every person who claims a refund is first required to make an application under Section 11B (1) before time limit stated therein from the relevant date and once the refund claim has been made within the time limit, the provisions of section 11BB are to be considered for the purpose of determining interest on the delayed refund. Therefore, there is no room to link payment of interest with adjudication of the refund claim because Section 11BB says that if any order under sub-section 2 of Section 11B is passed and the amount is not refunded to applicant within three months from the date of receipt of application under Section 11B (1) liability to pay interest arises. It does not provide for payment of interest on factum of making payment of refund amount within three months from the date of the order passed under sub-section 2 of Section 11B. But clearly creates liability to pay interest with effect from expiry of three months from the date of application. As the facts and circumstances of the above cited decision are very similar to the present case, the benefit of the above decision should be extended to the appellant also. The appellant submits that merely because it was decided by the Commissioner Appeals that they are eligible for the refund claim filed by them, the same cannot be reason to forfeit their right to claim interest on the delay in sanctioning the rightly admissible rebate claim to them. As such, the impugned order in original denying the interest claim filed by them is totally erroneous and is liable to be quashed.
Furthermore, reliance is also placed on the decision given in the case of SAHAKAR MAHARSHI SHANKARRAO MOHITE PATIL SSK LTD. VERSUS C.C.E., PUNE-III [2008 (223) E.L.T. 653 (Tri. – Mumbai)]wherein it has been held as follows:-

Interest on delayed refund - Relevant date - Liability to pay interest on refund amount is not tagged to adjudicative decision that duty was paid in excess and refund is to be sanctioned, if ultimately found to be payable, after expiry of three months from making the application for refund - Section 11BB of Central Excise Act, 1944. [paras 4, 5]
In the above cited case also it was concluded that interest on delayed refund is payable after expiry of three months from making the application for refund irrespective of the fact that the adjudication of the refund claim was made at a later date. In the present case also, the appellant are eligible for claiming interest on refund claim filed on 9.4.2012 irrespective of the fact that the refund claim was sanctioned vide order in appeal passed by the Commissioner Appeals.
Aligning with the above, reliance is also placed on the decision given in the case ofVINAYAK INDUSTRIES VERSUS COMMISSIONER OF C. EX., RAJKOT [2007 (218) E.L.T. 73 (Tri. - Ahmd.)] wherein it has been held as follows:-
Interest on delayed refund - Computation of - Refund claim filed on 30-11-1995 which was rejected by Original Authority - Party went on appeal and matter finally disposed of by Tribunal in favour of party vide order dated 26-12-2003 - Dispute itself started with filing of refund claim on 30-11-1995, hence notwithstanding their filing a letter dated 12-4-2004 seeking refund in pursuance of Tribunal’s order what has been settled is only the refund claim - Interest to be paid treating the date of refund claim as 30-11-1995 - Section 11BB of Central Excise Act, 1944. [paras 4, 5]
As the facts and circumstances of the above cited case are very much similar to the present case, its benefit should be extended to them and the refund claim should be allowed.

Apart from the above cited decisions, reliance is also placed on the following decisions in support of their contention that they are eligible for interest on delayed sanction of refund after expiry of the 3 months from the date of filing of refund application and not from the date of passing of the appellate authority’s order.

CCE VS M/S SULAKI CHEMICALS PVT LTD. [2014-TIOL-363-HC-MUM-CX]:-

Central Excise - Refund - Interest on delayed refund under Section 11BB - Revenue's contention that the liability to pay interest arises after expiry of three months from the date of Commissioner (Appeals) order allowing refund is not correct - Appellate order allowing the refund of duty relates back to the order of the original authority and therefore by virtue of substantive Section 11BB of the Act, interest on the refund amount has to be paid from the date immediately after three months from the date of receipt of the application to the original authority till the refund of such duty. - Appeal dismissed : BOMBAY HIGH COURT.

MAHAJAN PROCESSORS P LTD VS CCE [2014-TIOL-275-CESTAT-MUM]:-

CE - Interest on Refund - s.11BB of CEA, 1944 - appellant claiming interest on delayed refund of the amount paid by them before issuance of the SCN and also deposits made in terms of stay order of Tribunal - issue no longer res integra - interest on delayed refund is payable on expiry of period of 3 months from the date of receipt of application u/s 11B(1) of the CEA, 1944 - adjudicating authority directed to comply - Appeal disposed of: CESTAT [para 5] - Appeal disposed of : MUMBAI CESTAT.

CC VS M/S AMARNATH ENVIROPLAST LTD [2014-TIOL-163-CESTAT-KOL]:-

Customs - Refund - Interest under Section 27A of the Customs Act, 1962 – Refund claim rejected initially and later allowed by the Tribunal – Liability to pay interest – Contention of the revenue that interest is payable only after three months from the date of Tribunal's order is not correct – Respondents are entitled for interest after three months from the date of filing refund claim – No merit in revenue's appeal against the order of Commissioner (Appeals) directing to pay interest. - Appeal dismissed : KOLKATA CESTAT

COMMR. OF CUS. & CENTRAL EXCISE VERSUS J.K. DRUGS & PHARMACEUTICALS [2012 (280) E.L.T. 365 (All.)]:-

Interest on delayed refund- Claim for refund of duty paid on inputs used in the manufacture of final product, exported out of India under bond without payment of duty - Documents under which Modvat/Cenvat taken not submitted but submitted after issue of Notification No. 6/97 C.E. (N.T.) - Credit lying unutilised on 1-3-1997 not utilizable towards payment of duty of excisable goods whether for home consumptions or export - Claim for refund submitted much prior to 1-3-1997 thus appellant entitled to interest on refund after expiry of 3 months from the date of making application - Tribunal order upheld - Sections 11B and 11BB of Central Excise Act, 1944. [para 11]

C.C.E., C. & S.T., DAMAN VERSUS B TEX OINTMENT MANUFACTURING CO. [2010 (257) E.L.T. 487 (Guj.)]:-

Interest on delayed refund- Relevant date - Principal dispute on the basis of which claim for refund arose was in relation to classification of product which became final in 1997 - Merely because the application for refund was rejected by Adjudicating Authority and assessee was constrained to litigate it does not mean that the right to refund, which had already crystalised in favour of assessee, did not exist - Explanation to Section 11BB of Central Excise Act, 1944 not to be read to mean that the period for which the assessee is entitled to interest will start running only from the point of time when an application is made after the order was made by Tribunal on 10-4-2003 - Section 11BB ibid. [paras 7, 8, 9]

COMMR. OF CUS. & C. EX., HYDERABAD-III VERSUS AMPRO INDUSTRIES PVT. LTD. [2012 (278) E.L.T. 306 (A.P.)]:-

Refund - Interest - Grant of - Refund claims, filed within six months of finalization of provisional assessment, and filed regularly as soon as quantification was done - On 21-6-2005 CESTAT holding that assessments were provisional and refund on finalization thereof, were not barred by time and unjust enrichment - HELD : Revenue is required to pay interest after expiry of three months from date of filing of initial refund application after final adjudication - Revenue plea that interest was payable only from date of application for refund submitted after CESTAT order of 21-6-2005, rejected - Sections 11B(1) and 11BB of Central Excise Act, 1944. [para 6]
Refund - Interest - Grant of - Shreeji Colour Chem Industries [2008 (230)E.L.T.199 (S.C.)] - Scope of - It does not lay any principle that starting point for calculation of three months period beyond which interest is payable, has to be computed from time application is made subsequent to final adjudication by Tribunal, and not time at which application is made under Section 11B(1) of Central Excise Act, 1944. [para 6]

IN RE : UNIQUE PHARMACEUTICAL LABORATORIES [2013 (295) E.L.T. 129 (G.O.I.)]:-

Revision of Order-in-appeal - Payment of interest on delayed refund -Interest payable after expiry of three months from the date of receipt of rebate/refund application as per Section 11BB of Central Excise Act, 1944 - Applicants entitled to refund - Section 35EE ibid. [paras 10, 10.1, 10.2]

MADURA COATS PRIVATE LTD. VERSUS COMMISSIONER OF C. EX., MADURAI [2013 (294) E.L.T. 113 (Tri. – Chennai)]:-

Interest on delayed refund- Refund claim filed on 26-3-2002 and sanctioned on 29-10-2010 - Well settled law that three months’ period for grant of refund calculated from date of making application and not from date of sanction - No dispute regarding inordinate delay in grant of refund - Assessee entitled to interest for period from 26-6-2002 to 29-10-2010 - Section 11AA of Central Excise Act, 1944. [para 4]

IN RE : RELIANCE INDUSTRIES LTD. [2012 (281) E.L.T. 132 (G.O.I.)]:-

Interest on delayed payment of rebate on export - Interest is to be given after the completion of three months from date of application for rebate received in Divisional Office - All specified documents were submitted by applicant along with rebate claims - Enquiry made by Department from Customs at port of export regarding genuineness of Bill of Lading/Mate Receipt cannot be a reason of delay in sanction of rebate claim - Sections 11B and 11BB of Central Excise Act, 1944; Rule 18 of Central Excise Rules, 2002. [paras 9, 10, 11]

SALEM CYLINDERS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2011 (274) E.L.T. 566 (Tri. - Chennai)]:-

Interest on delayed sanction of the refund - Interest payable even if delayed refund credited in Consumer Welfare Fund - Assessee eligible to interest after the expiry of three months from the date when the refund initially claimed, ultimately sanctioned though reduced and credited in Consumer Welfare Fund - Date on which claim subsequently sanctioned not to be considered to determine the interest on delayed refund - Section 11BB of Central Excise Act, 1944. [para 2]

COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD VERSUS OLYMPIC SYNTHETICS [2009 (236) E.L.T. 526 (Tri. - Ahmd.)]:-

Interest on delayed refund- It is to be granted after three months from date of receipt of refund application and not any fresh application that may have been filed - Section 11BB of Central Excise Act, 1944. [para 5]

AGLOWMED LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, VAPI [2009 (233) E.L.T. 413 (Tri. - Ahmd.)]:-

Interest on delayed refund- Refund claim made on 26-12-2002 initially rejected by authorities and issue was under litigation, finally held in favour of assessee by subsequent decisions of higher appellate forum - Such fact not to be taken as ground for denial of interest after expiry of 3 months period from date of filing of refund claim - Decision of Rajasthan High Court in case of J.K. Cement Works [2004 (170)E.L.T.4 (Raj.)] applicable - Appellant entitled to interest in terms of Section 11BB of Central Excise Act, 1944.[para 3]

COMMISSIONER OF C. EX., MADURAI VERSUS MADURA COATS PVT. LTD. [2008 (228) E.L.T. 433 (Tri. – Chennai)]:-

Interest - Refund, consequential refund - Delay - Interest payable from the date immediately after expiry of three months from the date of filing the refund application and not from the date after expiry of three months from the date on which refund claim was allowed - Section 11BB of Central Excise Act, 1944. [para 1]
In light of the above cited decisions, it is crystal clear that the issue of computation of date from which interest is payable on delayed sanction of refund under section 11BB of the Central Excise Act, 1944 is no longer res integra and the issue has been settled in favour of the assessee. As such, the interest claim filed on delayed sanction of refund claim under section 11BB should have been sanctioned to them and the impugned order in original should be quashed as the same is devoid of any merits.

In continuation to the above, the appellant also submits that it has been held by the impugned order in original that as the refund claim is not admissible and is liable to be rejected, there is no need to discuss the other aspect i.e., law of unjust enrichment. In this respect, it is worth mentioning that even if the refund claim was admissible to the appellant, there was no need to examine the aspect of unjust enrichment because the present case is covered by the Proviso to Section 11B (2), wherein it has been mentioned as follows:-

“Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to-

Rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ”

In light of the above provision, it is very much clear that the aspect of unjust enrichment need not be examined and the appeal filed should be allowed by granting the refund of interest.

The appellant submit that apart from the above submissions, most of the submissions made by the appellant in their reply to the show cause notice have not been considered while passing the impugned order in original. The said submissions are reproduced herein below and also form part of the grounds of appeal.
It was submitted that it has been alleged that they cannot claim interest on the refund sanctioned to us vide Order in Original no. 174/2013-R dated 16.08.2013 because the refund has been granted within three months from the date of filing of consequential refund pursuant to the order in appeal no. 55-56 (VC)/JPR-II/2013 dated 24.05.2013. In this regard they submitted that the above contention is totally absurd and illogical because the provision for interest on delayed refund is contained in section 11BB of the Central Excise Act, 1944 which states that “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”. On perusal of the above provision, it is crystal clear that interest on delayed refund is admissible after the expiry of 3 months from the date of filing the refund application. Moreover, the above submission is also backed by a number of judgments delivered by Hon’ble High Courts and further affirmed by Supreme Court. Hence, the date of passing of the order in appeal by the Commissioner Appeals is not at all relevant because the interest on delayed refund is admissible after expiry of 3 months from the date of filing of the refund application. As such, the law on the issue is very clear, the impugned show cause notice that proposes to deny the refund claim on baseless and absurd contentions deserves to be quashed.

Without prejudice to the above, they submitted that the contention that the interest on refund claim was not sanctioned by the Commissioner Appeals and so interest cannot be granted to them is of no significance in view of the fact that the interest on delayed sanction of refund claim is their statutory right and it cannot be deprived on flimsy grounds. In this regard, they also wish to place reliance on the latest decision given by the Hon’ble Delhi Tribunal in the case of M/s Hero Motors Ltd. Vs CCE, Ghaziabad [2014-TIOL-574-CESTAT-DEL] wherein it has been held that interest claim on delayed sanction of refund cannot be denied to the assessee even if the assessee gives up his right to claim interest before the adjudication authority. The synopsis of the case was also produced for the sake of convenient reference as follows:-

Central Excise - CENVAT Credit - cash refund of -Rule 5 of CCR -Interest for delayed payment of refund - assessee gives up right to claim interest before Adjudication authority - Assessee is not barred from claiming interest at appellate stage –No estoppel against law: Assessee claimed refund of accumulated credit under Rule 5 of the CENVAT Credit Rules. Even after three years refunds were not sanctioned. Assessee gave letters to the Adjudication authority undertaking not to claim interest. After getting refund, in appeal, assessee claimed interest.
In terms of Section 11BB if any duty ordered to be refunded under sub section(2) of the Section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section(1), there shall be paid to that applicant, interest at rate notified by the Central Government on such duty from the date immediately after expiry of three months from the date of receipt of such application till the date of refund of such duty. The refund under Rule 5 of the Cenvat Credit Rules, 2004 is the refund of in cash of the accumulated Cenvat Credit availed by a manufacturer in respect of inputs and input services used in the manufacturer of finished goods which had been exported without payment of duty under bond/ LUT and which manufacture is unable to utilize for payment of duty on clearance for home consumption. Clause (c) of Proviso to section 11B (2) refers to the "refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued under the Central Excise Act, 1944", as the refund claim not hit by the principle of unjust enrichment. Thus section 11B covers the refund of Cenvat Credit mentioned in Clause (c) of the Provision to section 11B (c). Therefore, the refund claims filed under Rule 5 of the Cenvat Credit Rules, 2004 have also to be treated as refund claim under section 11B and the Proviso of Section 11B (2) would be applicable to the same.
There is no estoppel in law against an assessee in taxation matters. Right conferred under the statute cannot be given up on the basis of concession made by any party to the lis. Therefore, just because the appellant by the letters addressed to the Jurisdictional Assistant Commissioner had given up their claim for interest on the amount of refund for the period of delay in sanction of the refund claims, they would not be estopped from challenging the denial of interest and claiming the same when they are entitled for the same under the statutory provisions of section 11BB.
On perusal of the above decision, it is very much clear that the assessee is entitled for interest on delayed sanction of refund irrespective of the fact whether the claim has been foregone by him earlier. As such, the contention that the refund claim was not sanctioned by the Commissioner Appeals is not of much significance as even if the interest on delayed refund was not made part of the grounds of appeal, there is no prohibition or restriction in claiming the same afterwards from the adjudicating authority. As such, the benefit of the above decision should be extended and the impugned show cause notice rejecting their interest claim on delayed sanction of refund deserves to be quashed.

Furthermore, reliance has been placed on the Explanation stated under section 11B of the Central Excise Act, 1944 wherein it has been specified that where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the relevant date shall be the date of such judgement, decree, order or direction. In this regard, it was submitted that the provisions of section 11B and that of section 11BB have been misinterpreted with a view to deny the interest claim filed by them. They submit that the interest on delayed refund is governed by the provisions of section 11BB wherein it has been clearly stated that if any duty that is ordered to be refunded under section 11B (2) is not refunded within 3 months from the date of the receipt of application under section 11B (1), applicant shall be paid interest after the expiry of 3 months from the date of receipt of the application till the date of refund of such duty. The provisions of section 11BB are crystal clear that interest is payable to the assessee after the expiry of 3 months from the date of receipt of the application.

Here, in the present case, they have filed their refund application amounting to Rs. 4,28,607/- on 09.04.2012 with respect to export made in the month of November, 2011 and have filed refund application amounting to Rs. 2,19,764/- on 09.04.2012 with respect to export made in the month of April, 2011. They submit that as they have filed their rebate claims within the time limit prescribed in section 11B of the Central Excise Act, 1944, the refund claim should have been granted to them within 3 months i.e. upto 8 July, 2012. However, show cause notices were issued with respect to the above refund claims filed by them having reference as V(Rfd.) 18/58/2012/7074 dated 25.5.2012 and V(Rfd.) 18/57/2012/7066 dated 25.05.2012 respectively. The show cause notices were issued to deny their rebate claims for procedural infraction of law and on the ground that they have simultaneously claimed the benefit of advance authorisation and rebate claim. The above show cause notices were decided vide order in original no. 108/2012-R dated 3.7.2012 and order in original no. 107/2012-R dated 3.7.2012. Aggrieved by the impugned order in originals, they filed appeal to the Commissioner Appeals wherein their appeal was allowed and it was concluded that they may simultaneously avail the benefit of advance authorisation (input stage benefit) and claim rebate under Rule 18 with respect to excise duty paid on finished goods exported (finished goods stage benefit). Consequently, their appeals were allowed vide Order in Appeal no. 55-56 (VC) CE/JPR-II/2013 dated 24.05.2013 subject to following of other procedures and conditions in this regard. Thereafter, they again filed consequential refund on 12.06.2013 wherein the rebate claims were sanctioned to them vide Order in Original no. 174/2013-R dated 16.08.2013.
They further submit that the date of filing of original rebate claim is to be considered for the purpose of computation of interest on delayed refund under section 11BB of the Central Excise Act, 1944 otherwise the provision of interest contained in section 11BB would become redundant as mostly, the consequential refund claim filed pursuant to order of appellate authority is granted within a period of 3 months unless and until the revenue department desires to contest the refund further in higher appellate forum. If the allegation of the impugned show cause notice is accepted as justifiable then the provision of interest contained in section 11BB would become meaningless. They submitted that “interest” under section 11BB is more or less a compensation for delay in the sanctioning of refund claim filed by the assessee for any reason, whatsoever. They also submit that the allegations for rejection of the rebate claim mainly pertained to procedural lapses and absurd reasoning that benefit of advance authorisation and rebate claim under Rule 18 with respect to excise duty paid on finished goods that are exported cannot be availed simultaneously. As such, they were eligible for rebate claim filed by them under Rule 18 on 09.04.2012 itself. Moreover, there was 3 month’s time available with the revenue department to clear all their doubts and grant them the rebate claim. But, the issue of rebate claim was carried upto the stage of first appellate authority. As such, the assessee cannot be made to suffer on account of baseless allegations of the revenue department in granting the rebate claim when the substantial conditions of the rebate claim stood fulfilled by them. They further submit that a period of 3 month is given to the revenue department to effectively process the rebate claims but the said time was wasted in unnecessary litigation. As it is known, there is no end of litigation, the assessee cannot be made the victim of dispute created at the end of revenue authorities. Hence, merely because, the allegations on which their refund claim was rejected were sought out by the first appellate authority and substantial time was devoted in the process, they cannot be held to bear the costs of delayed refund. They submit that there is no doubt that they have rightly filed the rebate claim within the prescribed time. Hence, the date for computation of interest on delayed refund would be the date of original filing of the refund claim by them on 09.04.2012 and not the date of filing of consequential refund on 12.06.2013. Therefore, they are eligible for claiming interest from 8.07.2012 till the date of actual sanction of refund to them. Hence, the impugned show cause notice proposing to deny the refund claim of interest is totally erroneous and bad in law and deserves to be set aside.

Aligning with the above, it was also submitted that the fact that they were entitled for the refund claim from the very beginning is not disputed because ultimately, the Commissioner Appeals allowed their appeal and directed to grant them the refund. They submit that they have filed consequential refund after the passing of order in appeal again so as to claim the refund allowed by the Commissioner Appeals. However, this cannot be construed as filing of new refund claim and is rather continuation of the original refund claim filed by them. The order in appeal passed by the Commissioner Appeals is only confirming the eligibility of the refund claim filed by them. As such, the revenue department has withheld their refund claim even when the same was admissible to them within a period of 3 months from the date of filing the original refund application on 09.04.2012.
In continuation to the above, they also submitted that erroneous recourse has been made to the provisions of section 11B of the Central Excise Act, 1944 read with the explanation contained in section 11BB of the Central Excise Act, 1944. In order to correctly analyse the provisions cited in the impugned show cause notice, its better to observe the provisions as follows:-

The explanation to section 11BB of the Central Excise Act, 1944 simply states that where any order of refund has been made by the Commissioner (Appeals), Appellate Tribunal or any court against the order of the Assistant/Deputy Commissioner of Central Excise, the order passed by the Commissioner (Appeals) or the Appellate Tribunal shall be deemed to be an order passed under section 11B (2) for the purpose of this sub section. This explanation to proviso to Section 11BB ibid introduces a deeming fiction that where order for refund is not made by Assistant Commissioner/Deputy Commissioner, but by Appellate Authority, such appellate order shall be deemed to be an order under Section 11B(2) for the purpose of section 11BB. This explanation does not postpone the date from which interest becomes payable to under Section 11BB. It only states that the said order will be deemed as order passed under section 11B (2) because the provisions of section 11BB are applicable only for orders made under section 11B (2). This explanation has been added with sole intention to make the provisions of interest on delayed refund also applicable to refund orders passed by the appellate authorities so that it is not interpreted that interest on delayed refund is admissible only with respect to orders passed by the Assistant/Deputy Commissioner of Central Excise rather the interest on delayed refund is also admissible if the refund is allowed for orders passed by appellate authorities. In support of the above contention, they placed reliance on the decision given in the case of GUJARAT STATE FERTILIZERS & CHEMICALS LTD. VERSUSC.C., AHMEDABAD [2004 (173) E.L.T. 245 (Tri. – Mumbai)]wherein it has been held as follows:-

Interest on delayed refund - Payable from the date immediately after the expiry of three months from the date of receipt of the refund application till the date of refund of such duty - Departments submission that since the refund arises out of the order of Tribunal, claim is not covered by Section 27(2) of Customs Act, 1962, but by Section 27A ibid, does not alter the position in view of explanation to Section 27A ibid. [para 2]
In the above cited case, it was contended by revenue that as the refund arose out of order of the Tribunal, the claim was not covered by section 27(2) of the Customs Act, 1962 but the Mumbai Tribunal held that the explanation to section 27A created a deeming fiction wherein the orders passed by the Tribunal also get covered under section 27(2) of the Customs Act. They submitted that section 27(2) of the Customs Act is similar to section 11B (2) of the Central Excise Act, 1944 and section 27A contains provision of interest on delayed refund. Accordingly, the analogy of the case that in view of explanation to section 27A, the orders passed by Tribunal or appellate authorities are deemed to be orders passed under section 27 (2) is squarely applicable to the present case with respect to the provisions of Central Excise Act, 1944. As such, it is clear that the explanation to section 11BB only makes the refund order passed by the appellate authorities similar to the orders passed under section 11B (2) of the Central Excise Act and so the contention of the impugned show cause notice that interest on delayed refund is not admissible to them is totally wrong.
They further submitted that this explanation under section 11BB has been correlated to the explanation given in section 11B defining the meaning of relevant date. It has been contended that explanation to section 11B states that in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, appellate tribunal or court, the relevant date shall be the date of such judgment, decree, order or direction. In this regard, they submitted that totally wrong and absurd correlation has been made between the two explanations. We submit that the above explanation to section 11B prescribes that the relevant date for filing the refund claim in case where duty becomes refundable as a consequence of judgment, decree or order of court is the date of such order of the court. In simple words, the refund claim pursuant to the order of a court should be filed within one year from the date of such order of the court. This explanation has nothing to do with the provisions of section 11BB pertaining to the interest on delayed refund. The meaning of relevant date is applicable for sub-section (1) of section 11B wherein it has been stated an application for refund of any duty of excise and interest should be made before expiry of one year from the relevant date. Hence, the only purpose of explanation to section 11B is for sub-section (1) wherein it is stated that the refund should be filed to the Assistant/Deputy Commissioner of the Central Excise within a period of one year from the relevant date. Here, in the present case, they have also filed the consequential refund application within a period of one year from the date of passing of the order in appeal allowing their appeal for rebate claim. As such, the explanation of relevant date has no significance with respect to provision of section 11BB. On the contrary, the provision of section 11BB are dependent on section 11B (2) and accordingly, the refund orders passed by appellate authorities are deemed as orders passed under section 11B (2) and are made eligible for benefit of interest on delayed refund provisions contained in section 11BB. As such, on harmoniously interpreting the said explanations, we will come to the conclusion that even the refund orders passed by the appellate authorities are eligible for the benefit of interest if refund has been delayed to the assessee. Moreover, the provisions of section 11BB are very clear that the interest on delayed refund will be admissible after expiry of three months from the date of receipt of application under section 11B(1). Hence, the explanations do not postpone the computation date of interest and the interest is admissible from the date of filing original rebate application. Therefore, the impugned show cause notice based on erroneous interpretation is liable to be quashed.

Aligning with the above, they also placed reliance on the decision given by the Hon’ble Bombay High Court in the case of COMMISSIONER OF C. EX., PUNE-III VERSUS BALLARPUR INDUSTRIES LTD. [2008 (229) E.L.T. 498 (Bom.)] which has also been approved by the Apex Court in case of M/s Ranbaxy Laboratories Ltd. having citation as [2011 (273) E.L.T. 3 (S.C.) = 2012 (27) S.T.R. 193 (S.C.)]. The synopsis of the decision given by the Bombay High Court is produced for the sake of convenient reference as follows:-

Interest on delayed refund- Interest is payable under Section 11BB of Central Excise Act, 1944 on expiry of period of three months from date of receipt of application and that explanation appearing below Section 11BB ibid does not have any effect or connection with date from which interest under Section 11BB ibid becomes payable - Only purpose served by explanation, is to introduce a deeming fiction which is relevant for purpose of sub-section (2) of Section 11B ibid. [para 4]
The above cited decision delivered by the Hon’ble High Court also supports their submission that the explanation appearing below section 11BB does not have any connection with the computation of date from which interest under section 11BB is payable. The interest on every case of delayed refund is to be computed after expiry of the period of 3 months from the date of filing application of refund to the date of payment of refund. It also confirms their submission that the explanation to section 11BB only creates a deeming fiction so as to enable refund orders passed by appellate authorities to become eligible for benefit of interest under section 11BB because section 11BB provides interest on delayed refund orders passed under section 11B (2). As such, the impugned show cause notice wrongly interpreting the explanation to section 11BB and the explanation as regards relevant date given under section 11B is liable to be set aside.

In continuation to the above, reliance was also placed on the Apex Court judgment given in the case of Ranbaxy Laboratories Ltd. Vs Union of India [2011 (273) E.L.T. 3 (S.C.)= 2012 (27) S.T.R. 193 (S.C.)] wherein it has been concluded as follows:-

With reference to submissions made herein para no. (11) above, it is submitted that these are the submissions that were made before learned adjudicating authority in the reply to the show cause notice However, none of these submissions have been discussed and distinguished by the learned adjudicating authority while passing the impugned order in original. Thus, the order has proved to be a non-speaking and non-reasoned order which is not sustainable in the light of following decisions:-
M/s Ashbee Systems Pvt Ltd v/s CCE, Delhi [2011-TIOL-181-HC-DEL-CX]-

Central Excise – procurement, erection and commissioning of pit and pitless type of Electronic Weigh Bridge – whether manufacture – CESTAT has not considered the grounds and case law relied upon by the petitioner – Matter remanded: It is noticed that the impugned order passed by the CESTAT does not notice and take into consideration the contentions raised by the petitioner including case law relied upon by them have not been referred to in the impugned order. Keeping in view the afore-said facts, the impugned order is quashed and CESTAT asked o decide the application for stay afresh. The Tribunal will keep in mind the contentions and reasons including the case law relied upon by the petitioner. It is clarified that this Court has not expressed any opinion on merits of the controversy and issue. CESTAT will independently apply its mind.: DELHI HIGH COURT;

UoI Vs M/s V E Commercial Vehicles Ltd [2011-TIOL-68-SC-CX]-

Appreciation of the evidence- matter remanded: findings recorded by the High Court in the impugned judgment and order and the conclusions arrived at thereto are contrary to the decision of this Court in Rajasthan Spinning & Weaving Mills (2009-TIOL-63-SC-CX) as also the evidence that is available in the nature of the show cause notice, reply submitted and the findings arrived at by the adjudicating authority. Those findings and the evidence on record should have been considered and appreciated by the High Court. Despite the availability of such evidence on record, the High Court was not justified to hold that there was no evidence adduced or brought on record in support of the contention that there was no malice or clandestine approach to evade payment of duty. The findings are without reasons and without appreciation of the evidence available on record. : SUPREME COURT;

CC Vs Essar Oil Limited [2010-TIOL-560-HC-AHM-CUS]:-

“CESTAT is required to pass reasoned speaking orders - while setting aside the order of the Commissioner the Tribunal has not recorded any finding as to in what manner the findings recorded by Commissioner are erroneous or as to why it was required to take a different view.
It is a matter of regret that the Tribunal still continues to ignore the same: Despite there a being plethora of precedents holding that an appellate authority is required to record facts, contentions as well as reasons for arriving at its conclusions, it is a matter of regret that the Tribunal still continues to ignore the same and pass orders like the present one without recording facts or reasons.

In the light of above cited decisions, an order passed without discussing the submissions and decisions cited by the appellant is not sustainable. In the instant case also, the impugned order in original has not discussed the decisions as well as other submissions given by the appellant, as such it has proved to be a non speaking and non reasoned order which has wrongly rejected their interest claim. Such an order is not sustainable as it is a non speaking order and is liable to be quashed. The appeal should therefore be allowed.

Decision:- Appeal Allowed
Conclusion:- The inference of the case is that the relevant date for granting interest on delayed payment of refund is expiry of three months from the date of filing the refund claim initially till payment of refund and not from the date of Order of the Appellate Authority till payment of refund. Therefore the appellant stands entitled to interest @ 6% as per notification no. 67/2003-CE(NT) dated 12.09.2003 read with provisions of Section 11B of the Central Excise Act, 1944 on the amount of delayed payment of rebate claims from the date of expiry of three months of filing refund claim till the date of actual refund of such duty.

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PJ/Casestudy/2016-17/123
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PJ/Casestudy/2016-17/123
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