Customs, Excise and Gold Tribunal - Delhi
J.K. White Cement Works vs Cce on 26 April, 2005
Equivalent citations: 2005(101)ECC97, 2004(178)ELT291(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In these two appeals, arising out of a common Order-in-Appeal No. 128/(SN)CE/JPR-I/2004 dated 1.4.2004 -- one appeal filed by M/s. J.K. White Cement Works and the other appeal filed by Revenue -- the issue relates to refund of Central Excise Duty.
2.1 Shri Ravindra Narain, learned senior Advocate, mentioned that M/s. J.K. White Cement Works (M/s. J.K. in short) manufacture white cement; that they had commenced commercial production of white cement in September, 1984 which was classified by them under Tariff Item 23 (2) of the Erstwhile Central Excise Tariff attracting duty on ad-valorem basis; that they also filed a price list declaring value after making certain deductions towards packing charges, which was not acceptable to the Department; that they started clearances of white cement under protest; that since there was a price change, a second price list was filed on 3.1.1985 alongwith a covering letter mentioning therein that the duty would be paid 'under protest'; that the gate passes for the entire period from September 1984 onwards also bear an endorsement of under protest.
2.2 He, further, mentioned that M/s. J.K., under their letter dated 16.12.85, disputed the classification of white cement and claimed its classification under Tariff Item 23(1) and filed an application for refund of duty for the period from September 1984 to November 1985 on account of changed classification; that the Assistant Collector finalised the classification list under Order dated 15.4.1988 rejecting their contention and maintaining the classification of white cement under Tariff Item 23(2); that on appeal filed by them, the Commissioner (Appeals), under order dated 25.7.1989 set aside the Adjudication Order dated 15.4.88 and remanded the matter for reconsidering the question of classification; that the Assistant Collector again passed the Adjudication Order classifying white cement under Tariff Item 23(2); that on appeal, the Collector (Appeals), vide Order-in-Appeal dated 19.9.1991, allowed the appeal holding that white cement falls in the category of 'Rapid Hardening Cement' classifying under Tariff Item 23(1); that, thereafter, they started clearing white cement at specific rate of duty under Heading 2502.20 of the Schedule to the Central Excise Tariff Act (equivalent to the Erstwhile Tariff Item 23(1); that as a dispute regarding applicability of exemption under Notification No. 24/91-CE arose, a specific Order of provisional assessment under Rule 9B of the Central Excise Rules, was passed on 12.11.1991 and thereupon all clearances were made on provisional basis.
2.3 The learned Sr. Advocate mentioned that on appeal filed by the Department, the Appellate Tribunal granted stay of the operation of the Order-in-Appeal dated 19.9.1991 by an Order dated 30.1.92 which, in turn, was stayed by the Delhi High Court in writ petition No. 778 of 1992 on 20.2.1992; that the Tribunal, vide Final Order dated 23.8.1994, allowed the appeal directing the classification of white cement under Tariff Item 23(2); that on appeal preferred by them, the Supreme Court, vide judgment dated 12.5.1998, allowed the appeal upholding the classification of white cement under Tariff Item 23(1) of the old Tariff and under sub-heading 2502.20 of the new Central Excise Tariff and directed the consequential relief; that the judgment of the Supreme Court is reported in 1988 (100) ELT 327.
2.4 He, further, mentioned that after the appeal filed by the Revenue was allowed by the Tribunal, the Assistant Collector rejected the refund claims filed by them for the period September, 1984 to 17.10.1991 without granting any hearing to them; that after the judgment of Supreme Court, the Collector (Appeals) allowed the appeal filed by them against the rejection of the refund claims and remanded the matter to the Assistant Commissioner for disposal in the light of the judgment and Order of the Supreme Court; that, thereafter, the Department took up the refund claims for adjudication and the Superintendent (Central Excise) visited their factory on 20.4.2002 for verifying the books of accounts and relevant records; that as directed by the Department, they submitted a calculation under their letter dated 22.4.2002; that on query from the Superintendent (Central Excise) under letter dated 24.4.2002 regarding passing of incidence of the duty to other persons, M/s. J.K. sent a detailed note and calculations under letter dated 3.5.2002 showing that almost the entire amount of refund claim was not recovered from their customers; that a certificate of the Cost Accountant in support thereof was also submitted; that during the pendency of the refund proceedings, they were coerced to submit a letter giving up their claim for interest under Section 11BB of the Central Excise Act; that they submitted such letter on 12.9.2002; that the Assistant Commissioner passed the Order-in-Original No. 18/03 dated 27.5.2003 as under:
(i) for the period September 1984 to 14.6.1985, he rejected the refund claim as time-barred;
(ii) for the period from 15.6.1985 to 17.10.1991, he sanctioned and ordered the amount to be credited to the Consumer Welfare Fund;
(iii) during the period from 15.6.1985 to 23.9.1991, in respect of supplies of white cement to M/s. Snowcem India Limited, he rejected the claim for refund on the ground that Modvat Credit had been taken by M/s. Snowcem India Ltd.
2.5 On appeal preferred by them, the Commissioner (Appeals), by impugned Order-in-Appeal dated 31.3.2004, has held as under:
(a) for the period from September 1984 to 14.6.1985, the claim is not time-barred as the duty was paid under protest. Accordingly, he sanctioned the refund claim subject to proviso to Section 11B of the Central Excise Act;
(b) in respect of supplies made to M/s. Snowcem India Ltd., he rejected the refund claim relying upon the decision in the case of Harawala Engg. Works Pvt. Ltd. v. CCE, 1985 (22) ELT 903.
(c) with regard to the remaining period from 15.6.1985 to 17.10.1991, the Order of the Assistant Commissioner sanctioning and crediting the same to the Consumer Welfare Fund, was upheld.
2.6 The learned Sr. Advocate also mentioned that as the duty was paid by M/s. J.K. on ad valorem basis, the dispute has arisen with regard to valuation of white cement; that the Assistant Collector has passed a specific Order for provisional assessment under Rule 9B w.e.f. 7.9.1988.
3. The learned Sr. Counsel has divided the entire period for the refund of duty in dispute into various period and has made his submissions period-wise as under:
3.1 Refund claim for the period Sept. 1984 to 14.6.1985: Learned Sr. Advocate submitted that the Assistant Commissioner had rejected the claim being time-barred whereas the Commissioner (Appeals) has held that the refund claim for this period is not time-barred as the duty was paid under protest; that the Commissioner (Appeals) has, however, held that the refund claim is subject to the provisions of Section 11B of the Central Excise Act; that as the Commissioner (Appeals) had not decided the question whether the incidence of duty had been passed on by them to another person, the matter should be remanded to the Assistant Commissioner to consider this aspect. He, further, mentioned that the Revenue has also filed an appeal against the impugned Order by which the Commissioner (Appeals) has allowed the refund claim for this period on the ground that the protest was not lodged as per the procedure prescribed under Rule 233B of the Central Excise Rules, 1944 and that the protest was in respect of the claim for deduction on account of packing charges and not with regard to classification of the goods on account of which refund of the excise has been sought by them. The learned Sr. Advocate submitted that for the purpose of considering the question of limitation, what is required to be considered is whether the payment of duty has been made under protest; that if it is shown that the duty was paid under protest, the claim should not be treated as time-barred as specifically provided by Second Proviso to Section 11B(1) of the Central Excise Act which mentions that "the limitation of six months shall not apply where any duty has been paid under protest"; that the Department has not denied the fact that an endorsement under protest on all gate passes was made by them; that in the case of Mafatlal Industries Ltd. v. CCE, 2002 (83) ECC 85 (SC) : 1997 (89) ELT 247 (SC), it is mentioned in paras 84 and 85 of the judgment that it is not necessary to disclose the ground of payment of duty under protest. He, further, contended that the purpose of Rule 233B is only to have a record that the demand has been made under protest; that once it is established that the payment of duty was made under protest, the claim cannot be treated as time-barred; that it has been held in the case of Roche Products Ltd. v. UOI, 1981 (51) ELT 238 that Rules are procedural and can by no stretch of imagination can be treated as mandatory and an intimation sent by a letter to the Assistant Collector that duty was being paid under protest, was considered as sufficient compliance; that in the present matters also, besides endorsing under protest on every gate pass, the appellants in their letter dated 3.1.85 had clearly reiterated that duty would be continued to be paid under protest; that even if the protest is lodged on one issue, it itself shows that the payment is not being made without protest and so long as the payment is under protest, the provision of Section 11B would not apply.
3.2 Refund claim for the period from 15.6.85 to 14.1.86:
The learned Sr. Advocate mentioned that both the Assistant Commissioner and the Commissioner (Appeals) have sanctioned the refund for this period but have ordered the amount of refund to be credited to the Consumer Welfare Fund; that the submissions regarding non-applicability of the bar of unjust enrichment will be made after discussing the refund claims for all the periods.
3.3 Refund claim for the period 15.1.86 to 15.4.1988:
Though the refund for the said period has been sanctioned, both the lower authorities have ordered the amount of refund to be credited to the Consumer Welfare Fund. The learned Sr. Advocate submitted that during the said period, the assessments were provisional and as such as per para 95 of the judgment of the Supreme Court in the case of Mafatlal Industries (supra), the amount of refund is to be given to the applicants i.e. M/s. J.K. in the present matters; that M/s. J.K. have filed a classification list effective from 15.1.1986, claiming assessment of the impugned product as rapid hardening cement; that as the classification list was approved only in 15.4.1988, the assessment is deemed to be provisional during the pendency of the approval of the classification list. He relied upon the decision of the Larger Bench of the Tribunal in the case of Rajiv Mardia v. CCE, Indore, 2001 (75) ECC 221 (T-LB) : 2001 (129) ELT 334 (T-LB) wherein the Larger Bench has held that "even if the procedure contemplated by Rule 9B is not complied with, it will be deemed that the payment of duty was provisional"; that the Larger Bench has also held that the decision in the case of Samrat International envisages payment of duty on provisional basis pending decision on classification lists or price list and all these payments to be treated as provisional, the procedure contemplated by Rule 9B is not to be followed. He also mentioned that the judgment in the case of Metal Forging v. Union of India, 2002 (84) ECC 705 (SC) : 2002 (146) ELT 241 (SC), relied upon by the Revenue does not in any way alter the position in law.
3.4 Refund for the period from 16.4.88 to 6.9.88:
During this period, the issue to be decided is only regarding unjust enrichment which will be taken up separately. The learned Sr. Advocate submitted that the classification list was approved without giving adequate opportunity to M/s. J.K. and as such the order passed on the classification list on 15.4.1988 was a nullity in the eyes of law; that this Adjudication Order was remanded by the Commissioner (Appeals), vide Order dated 25.7.1989; that since the Order dated 15.4.1988 had been set aside by the Commissioner (Appeals), it has no existence in the eyes of law and the issue of classification remained pending till it was decided afresh by the Assistant Commissioner by an Order dated 22.1.1990; that thus, the issue remained pending till 22.1.1990 and the assessment would be treated as provisional. He also mentioned that the de novo Order passed by the Assistant Collector rejecting the classification claimed by them, was set aside by the Commissioner (Appeals) and which has ultimately been upheld by the Supreme Court by an Order dated 12.5.1998; that as such the issue of classification was finally decided only on 12.5.1998.
3.5 Refund claim for the period 7.9.88 to 20.4.89:
He mentioned that the assessments for this period were provisional under Rule 9B as the price lists submitted w.e.f. 7.9.1988 were provisionally approved under Rule 9B of the Central Excise Rules, 1944; that these price lists were approved finally only by an Order of the Assistant Collector dated 27.7.1990; that as such the assessment has to be treated as provisional prior to Order dated 27.7.1990; that as no appeal was filed against the Order dated 27.7.1990, the exception set out in the latter part of para 95 of M/s. Mafatlal Industries judgment (supra) is also not attracted and as such the bar of unjust enrichment will not apply. The learned Sr. Advocate also contended that the Order passed regarding classification on 15.4.1988 or the subsequent Order dated 22.1.1990, cannot be treated as final Orders under Rule 9B since the valuation dispute remained pending even after the passing of these orders; that, therefore, the decision on classification issue given by the Assistant Collector cannot be treated as the final Order under Rule 9B; that since the Order of the Assistant Collector on classification issue were only appealed against which ultimately culminated in the Order of the Supreme Court on 12.5.1998, the Order of the Supreme Court in consequence of which refund is payable, would not be an Order-in-Appeal against all final orders passed under Rule 9B. As such the exception mentioned in para 95 of Mafatlal Industries judgment (supra) would have no application; that since the assessments were provisional during this period, refund is permissible without reference to Section 11B of the Central Excise Act.
The learned Sr. Advocate also contended that no distinction in law can be made against the Order passed by the Assistant Collector under Rule 9B(5) finalising the provisional assessment or an Order passed in a statutory appeal against such order; that it is settled law that the Original Order merges with the Order-in-Appeal and a relief to which an assessee becomes entitled to as a result of the Order passed at the first stage, cannot be distinguished with reference to its effectiveness from an order passed in appeal therefrom; that, therefore, where entitlement to refund is as per the Order passed by the first authority under Rule 9B(5) or by the Appellate Authority in exercise of statutory right of appeal, efficacy thereof would be the same and no distinction can be made as to entitlement for refund; that the latter part of para 95 of the Mafatlal Industries judgment which purports to carve out an exception in respect of entitlement to refund on the basis of the Order of the Appellate Authority against final Order passed under Rule 9B(5) has no legal basis; that this exception ought to be read and applied in a meaningful and reasonable manner, which is not arbitrary and un-reasonable and does not violate the fundamental right of the assessee under the Constitution.
3.6 Refund for the period 21.4.89 to 20.6.90:
He mentioned that the assessments for this period were provisional under Rule 9B as the price lists w.e.f. 21.4.1989 were provisional approved under Rule 9B; that other price lists submitted subsequently were also approved provisionally under Rule 9B; that the order with regard to final approval of price lists was passed on 11.6.1990 and 21.6.90; that as such during this entire period, the assessments were provisionally; that no appeal was filed against the Orders dated 11.6.90 and 21.6.90 finalising the price lists. The learned Sr. Advocate reiterated the submissions contained in sub-paragraph 3.5 above.
3.7 Refund for the period from 21.6.90 to 23.9.91. He mentioned that seven price lists were submitted during this period all of which were provisionally approved under Rule 9B; that price lists effective from 21.6.90 was finally approved by an Order dated 18.12.90 against which an appeal was filed before the Collector (Appeals) who vide Order dated 5.3.1991 allowed the appeal and set aside the order of the Assistant Collector; that the Assistant Collector vide Order dated 8.5.1991 against provisionally approved three price lists effective from 21.6.90, 1.11.90 and 14.1.1991 under Rule 9B; that, subsequently, by a Order dated 24.5.1991, the remaining three price lists dated 11.3.1991, 25.3.1991 and 3.5.1991 were also provisionally approved under Rule 9B; that the 7th price list effective from 2.7.91 was provisionally approved under Rule 9B by an Order dated 1.8.91. He, further, mentioned that the Order-in-Appeal dated 5.3.1991 was challenged, in appeal before the Tribunal; that while this appeal was pending before the Tribunal, the Supreme Court finally decided the classification issue and held that duty was payable on the basis of specific rate; that as a result thereof the issue relating to valuation became academic and the Appellate Tribunal, vide Final Order dated 10.8.1998 observed that in view of the decision of the Supreme Court, the issue of valuation became academic and directed the authorities to dispose of the pending cases on valuation accordingly. He contended that the price lists effective from 21.6.90 continued to be provisional under Rule 9B till the decision of the Supreme Court dated 12.5.98; that, thus, it is only upon the final decision of the Supreme Court that they became entitled to refund in respect of all the pending refund applications; that the Assistant Collector, after taking note of the Tribunal's decision dated 10.8.1998, passed an order dated 16.10.98 and the Supdt. (CE) by an order dated 9.11.1988 treated the issue in relation to all the seven price lists as concluded; that these provisional assessments were finalised as per Rule 9B(5) and, therefore, they are entitled to receive refund of excess duty paid.
3.8 Refund for the period from 24.9.91 to 17.10.91.
Learned Sr. Advocate mentioned that during this period also a specific Order was passed under Rule 9B on 12.11.1991; that similar order was also passed on the R.T. 12 returns; that in view of this specific order for provisional assessment, Section 11B would have no application and the refund would be paid to them as per para 95 of Mafatlal Industries judgment (supra).
4.1 Regarding applicability of bar of unjust enrichment, the learned Senior Advocate submitted that M/s. J.K. have placed sufficient material on record to show that the incidence of duty has not been passed on to any other person; that the Assistant Commissioner has decided the issue regarding unjust enrichment on the basis of certain general observations made by the Supreme Court in Para 91 of the judgment in the case of Mafatlal Industries in a totally different context; that those observations cannot be interpreted, out of context, as if the Supreme Court has in a general manner decided and enumerated certain situations in which the plea against unjust enrichment cannot be entertained; that this issue has to be decided on the facts of each case, which has not been done in the present matters; that since the Assistant Commissioner had not dealt with the detailed material furnished by them, they at the hearing before the Commissioner (Appeals) placed on record an affidavit of the Principal Officer of the Company, Shri J.P. Bajpai, together with the certificate of the Cost Accountant; that, however, no consideration thereof is reflected in the impugned Order of the Commissioner (Appeals); that in view of this, in relation to the period for which it may be held that Section 11B applies, necessary directions may be given for consideration of the question of unjust enrichment.
4.2 He mentioned that the Cost Accountant has certified that the total sales realization is far less than the total amount being the reasonably expected price and as such, no part of the differential duty can be said to have been recovered from the customers and that the sale price at which the product was actually sold cannot be said to be a price which was not reasonably expected price on the basis of only the admitted duty and as such, the differential duty cannot be said to constitute a part of the sale price; that Shri J.P. Bajpai, Company Secretary, in his Affidavit dated 29.4.2004, has mentioned that keeping in view the sale price of white cement, recovered from the customers and the various details set out in the Cost Accountant's certificate, including the amounts of admitted duty payable and the differential duty, no part of the incidence of differential duty in respect of which refund is claimed can be treated as having been passed on to the purchaser upon sale of white cement. He contended that in these circumstances, in the absence of any evidence/material to the contrary, it cannot be said that the burden of proof as per Section 11B(2) has not been discharged by M/s. J.K. He relied upon the decision in the case of CCE v. Sethia Audio Video P. Ltd., 2003 (161) ELT 452 (T) wherein, on the basis of the certificate of a Cost Accountant, the plea against unjust enrichment was decided in favour of the assessee.
5.1 Finally, the learned Senior Advocate, mentioned that M/s. J.K. are entitled to get the interest on the amount of duty refundable; that the High Court of Delhi has ordered on 28.4.92, in W.P. No. 778/92 filed by them, that if they succeed in the matter regarding classification they would be entitled to refund alongwith interest; that as they have finally succeeded on the issue of classification, the Department is obliged to pay interest at the rate of 15% per annum on the amount ordered to be refunded; that once the Order of refund is made as per Sub-section (2) of Section 11B of the Central Excise Act, the interest on the amount to be refunded would also become payable; that keeping in view the Order of the Delhi High Court, two amounts would have become payable to them -- (i) the amount of excess excise duty paid; (ii) the amount of interest calculated on the said amount, payable as per the direction of the High Court; that, however, in view of the specific provision contained in Section 11(2) of the Act, excess duty may not be paid to them and may be credited to the Consumer Welfare Fund; that, however, the specific provision, which takes away their right to receive the amount of excess duty, has to be strectly construed and it cannot be interpreted to take away any further right that they have; that as per the Delhi High Court Order, they have a further right to receive interest which is in no Way affected or curtailed by Section 11(2) of the Act; that there is also no provision of law which absolves the Department to pay interest on the amount of excess excise duty, to be refunded by the Department; that, thus, even if they are unable to prove that he has not passed on the incidence of duty, their further right to interest remains in tact and is in no way curtailed; that this vested right of M/s. J.K. cannot be taken away in absence of any provision of law specifically making provision that the payment of interest would also be credited to the fund or that notwithstanding any Order of a Court, the amount of interest would not be payable by the Department.
5.2 He, further, mentioned that in cases where the assessments held to be provisional, the interest will also be payable alongwith the refund of excess duty. He also contended that in any event interest is payable also in terms of Section 11BB of the Central Excise Act; that Proviso to Section 11BB is applicable to their refund claims as the same have been filed before the date on which the Finance Bill, 1995 received the assent of the President of India; that the obligation of the Department to pay interest is to be discharged as per Proviso to Section 11BB of the Act as they are the persons who had paid the excess excise duty and has applied for the refund and interest is payable to them and not to the Consumer Welfare Fund. He also mentioned that they were coerced to give a letter dated 12.9.2002 disclaiming their right to interest; that this letter was conditioned in the event of refund being made to them as such this letter does not relate to a situation where the refund is not actually paid to them; that, moreover, in respect of a statutory obligation of the Department, it is not open to it to even suggest that by obtaining such a letter, its statutory obligation stands discharged.
6.0 Countering the arguments, Shri R.C. Sankhala, learned SDR, submitted as under:
6.1 Period 1984 to 14.6.85:
The learned SDR submitted that the duty was paid by M/s. J.K. during this period as per approved classification list effective from 11.5.84 under Tariff Item 23(2c) of the Tariff Item; that no dispute, whatsoever, was raised about the classification of the product; that the letter of payment of duty under protest filed by them on 3.1.85 is in connection with the issue of deduction of packing charges from value, having nothing to do with the classification list already approved by the Department; that there was no protest on the classification issue. He also mentioned that M/s. J.K. did not follow the procedure prescribed under Rule 233B of the Central Excise Rules; that, further, the duty paid under protest is for specific purpose which in the present case is for only valuation purposes; that, thus, the claim for refund filed for this, period is beyond time limit as prescribed in Section 11B of the Act. He relied upon the decision in the case of Jain 'Ceramics v. CCE, 1995 (78) ELT 186 and Workwell Engg. Co. v. CCE, 1999 (64) ECC 645 (T) : 1999 (112) ELT 848 (T). He mentioned that the approval of the classification list cannot be challenged by way of filing of refund claim; that it has been held by the Apex Court in CCE, Kanpur v. Flock (India) Pvt. Ltd., 2000 (71) ECC 4 (SC) : 2000 (120) ELT 285 (SC) the "it is not open to the party to question the corrections of the Order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudication authority had committed an error in passing his Order."
6.2 Period 15.6.1985 to 14.1.1986:
The learned SDR submitted that even if duty is paid under protest, the provisions of unjust enrichment are applicable as held by the Supreme Court in the case of CCE, Mumbai-II v. Allied Photographies India Ltd., 2004 (92) ECC 777 (SC): 2004 (166) ELT 3 (SC); that the applicant has to specifically show that he has not passed on the incidence of duty to the buyers. He also mentioned that there was no order for provisional assessment under Rule 9B of the Central Excise Rules, 1944; that any claim of provisional assessment is devoid of any basis; that M/s. J.K. have failed to discharge their onus in showing that they had not passed on the incidence of duty to their customers; that in all the gate passes as well as declarations submitted alongwith price lists, they had specifically declared that they had collected the excise duty from the buyers. He referred to Serial No. 11 of the questionnaire which reads as "Are you collecting from your buyers the same excise duty as you are paying the Department? and mentioned that the answer given by M/s. J.K. is "YES". He contended that thus they have passed on the incidence of duty to others.
6.3 Period 15.1.1986 to 6.9.1988:
The learned SDR submitted that the contention of the learned Senior Advocate that assessments were provisional is not correct since there was no Order or provisional assessment under Rule 9B of the Central Excise Rules. 1944; that merely because the classification list has not been approved, the assessment cannot be considered to be provisional; that such a contention is erroneous on account of authoritative pronouncement of the Apex Court in the case of Metal Forgings v. UOI, 2002 (84) ECC 705 (SC) : 2002 (146) ELT 241 (SC) wherein the Supreme Court has specifically stated that an Order under Rule 913 must be made to show that the goods were assessed provisionally; that the Supreme Court distinguished the decision in the case of Samrat International (P) Ltd. v. CCE, 1991 (31) ECC 207 (SC) : 1992 (58) ELT 561 which was relied upon by the Larger Bench of the Tribunal in the case of Rajiv Mardia (supra). The learned SDR also emphasised that there is no Order under Sub-rule (5) of Rule 9B at any stage of the proceedings as far as classification issue is concerned; that this has been mentioned by the learned Senior Advocate in his written submission dated 27.9.2004 (Para 44) wherein it has been specifically mentioned that Order dated 12.5.98 of the Supreme Court is not an Order-in-Appeal against the Final Order passed under Sub-rule (5) of Rule 9B........"; that, therefore, M/s. J.K. have to satisfy the Revenue that bar of unjust enrichment does not apply to their claim for refund of duty; that they have not been able to rebut the presumption contained in Section 12B of the Central Excise Act to the effect that every person who has paid the duty of excise on any goods shall, unless contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyers of such goods. The learned SDR mentioned that the learned Sr. Advocate has referred to the following lines in Metal Forging case in support of his contention that the assessments were provisional -- "These facts in the instance case are missing, therefore., in our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an Order made under Rule 9B empowering the clearances on the basis of such provisional classification." The learned SDR contended that ratio of a judgment is taken only after reading the whole judgment or at least the material parts and not a few lines from a particular para; that the ratio in the case of Metal Forging is that for assessment to be provisional there must be a specific Order for provisional assessment under Rule 9B. He also mentioned alternatively that even if it is presumed that the assessment was provisional, the finalization has taken place through various appellate proceedings and thus falls squarely under paragraph 95 of the judgment in Mafatlal Industries case and accordingly the provisions of unjust enrichment are applicable.
6.4 Period 7.9.88 to 23.9.1991:
The learned SDR submitted that during this period the assessment was provisional with respect to price list/that as far as the issue of classification was concerned, no specific order under Rule 9B was made; that the claim of M/s. J.K. is that the provisional assessment for one purpose is provisional for all purposes; that if their claim is accepted, the issue of classification was finally decided by the Supreme Court in 1998 after various rounds of appeals and as per Paragraph 95 of Mafatlal Industries decision if the final assessment is further challenged then the provisions of unjust enrichment will be applicable. He relied upon the decision in Contemporary Technologies Pvt. Ltd., 2003 (57) RLT 394 (CEGAT) wherein the Tribunal has held that bar of unjust enrichment is applicable as the refund had arisen consequent to challenge to finalization of assessment. He also mentioned that the other undisputed fact is that the duty paid during this period has been availed of as Modvat Credit by M/s. Snowcem India Ltd. which itself shows that their customer has procured white cement on payment of duty of which refund is now being sought.
6.5 Period 24.9.1991 to 17.10.1991:
He contended that as during this period the duty was paid at specific rate, there arises no question of provisional assessment; that M/s. J.K; have to satisfy that the provisions of unjust enrichment are not applicable.
7.1 The learned SDR submitted that the bar of unjust enrichment is attracted in the present matters, that in the declaration attached with price list and also gate passes clearly show that they had recovered the duty from the buyers; that the Affidavit of Shri Bajpai is not categorical that the duty has been passed or not as it merely states that "no part of the incidence of differential duty in respect of which refund is claimed during the aforesaid period can be treated as having been passed on to the purchaser Upon sale of white cement"; that the Affidavit nowhere mentions that the incidence of duty was not passed on to the purchaser. He mentioned that in the Certificate, the Cost Accountant is matching the actual price with the reasonable expected price and does not say that whether the duty has been recovered from the customers or not; that a chart, at page 92 of the Memorandum of Appeal, shows loss as Rs. 10.59 and the excise duty paid Rs. 954.31 and thus it is clear that if there is any loss, it is not due to excise duty but may be on account of their own inefficiency or gestation period or costing method; that decision in the case of Sethia Audio is not applicable as the certificate of Cost Accountant is devoid of any basis on which such certificate has been issued. He relied upon the decision in the case of CCE, Goa v. Christine Hodel (I) Ltd., 2003 (153) ELT 271 (T) wherein the Tribunal has held that "although the cost of a manufacture has generally to be received, the manufacturer also has to keep in mind the market condition. The manufacturer has necessarily to price its products in accordance with "what the traffic will bear.......he may be willing to forgo his profit or even incur a loss." He mentioned that the Tribunal has, further, held in the said decision that "the burden of proving that the incidence of duty has not been passed on rests upon the person who claims refund. Section 11B(2) is clear. It is the claimant who must show that incidence had not been passed on". The learned SDR contended that thus burden has not been discharged by M/s. J.K. in the present matters.
7.2 He also mentioned about the decision of the Larger Bench in CCE v. P.M.T. Machine Tools, 1992 (39) ECC 165 (T) : 1991 (55) ELT 592 (T) wherein it has been mentioned that once the assessment is provisional, it is provisional for all purposes; that this was mentioned in the context of time limit applicable to the refund claim; that the decision in the case of ITC Ltd. v. CCE, Patna, 1998 (102) ELT 660 is no authority on the proposition that provisional assessment for one reason is provisional for all reasons.
8. He finally submitted that payment of interest is governed by provisions of Section 11BB of the Central Excise Act, Section 11BB, provides that "If any duty ordered to be refunded under Sub-section (2) of Section 11B to any applicant is not refunded within three months.............., there shall be paid to the applicant interest ........."; that in the present case, no refund has been sanctioned under Sub-section (2) of Section 11B to M/s. J.K. (Applicants) and hence question of interest does not arise; once they have passed on the incidence of duty to others and to whom the refund has been specifically denied cannot claim the interest; that the judgment of the Supreme Court in the case of Pratibha Processors v. UOI, 2002 (82) ECC 233 (SC): 1996 (88) ELT 12 (SC) is applicable as the amount of refund is nil the question of interest cannot arise as in that case it was held that since the amount of duty is nil, the question of interest thereof cannot arise. He, further, mentioned that the Hon'ble High Court of Delhi has only directed that if M/s. J.K. "have to claim interest on refund, he may do so before the appropriate authority or move this Court afresh"; that thus the High Court has only said that in case of interest M/s. J.K. may do so by filing a claim before the appropriate authority; that since their claim of interest has been dealt with by the Appropriate Authority as per law and they have chosen not to move the High Court afresh, the claim for interest is without any basis.
9. We have considered the submissions of both the sides. The undisputed facts are that M/s. J.K. White Cement Works manufacture "White Cement" which was initially classified by them under Tariff Item No. 23 (2) of the Erstwhile Central Excise Tariff attracting duty on ad valorem basis. Subsequently, the issue of classification reached upto the Supreme Court which finally held by Order dated 12.5.98 reported in 1998 (100) ELT 327 (SC) that the cement manufactured by them is classifiable under Tariff Item 23 (i) of the Erstwhile Central Excise Tariff and sub-heading 2502.20 of the Schedule to the Central Excise Tariff Act. Hence, the claims for refund of duty filed by M/s. J.K. All the claims for refund of duty of excise paid in excess are governed by Section 11B of the Central Excise Act. Some of the main provisions of Sections 11B of the Act are that--
(i) An application for refund has to be filed before the expiry of six months from the relevant date. However, limitation of six months shall not apply where any duty has been paid under protest.
(ii) The application shall be accompanied by documents or other evidence to establish that the amount of duty collected from, or paid by him, and the incidence of duty had not been passed on by the Applicant to any other person.
(iii) If the Assistant Commissioner is satisfied that the duty paid by the applicant is refundable, he may make an Order accordingly and the amount so determined shall be coredited to the Consumer Welfare Fund.
(iv) However, in circumstances, enumerated in Proviso to Sub-section (2) of Section 11B, amount of duty shall be paid to the applicant.
9.1 (i) In respect of refund claim for the period from September, 1984 to 14.6.85, the Assistant Commissioner has rejected the refund claim as filed beyond the time limit specified in Section 11B(1) of the Act rejecting the plea of the Assessee that duty was paid under protest. The Commissioner (Appeals) has, however, held that the claim for refund was not time-barred. Revenue has come in appeal against this finding of the Commissioner (Appeals).
(ii) We do not find any force in the submissions of the learned Senior Advocate that duty was paid during this period tinder protest. It has not been disputed by them that during this period they had themselves classified the white cement manufactured by them under Item 23(2) of the Old Central Excise Tariff which had been approved by the Appropriate Authority. Neither the approval of the classification list filed by them under Rule 173B of the Central Excise Rules, 1944, challenged by them nor any classification list revising the classification was filed by them. It has been held by the Apex Court in Flocks (India) Ltd., (supra) that "there is little scope for doubt that in a case where an adjudicating authority has passed an Order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the Order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committee an error in passing his Order." Merely endorsing gate passes to the effect that duty paid under protest cannot make the approval of the classification list, which has not been challenged by M/s. J.K. ineffective. They have to challenge the approval of the classification list and this is what is provided also under Rule 233B of the Central Excuse Rules, 1944 prescribing the 'procedure to be followed in cases where duty is paid under protest' Sub-rule (6) of Rule 233-B provides that where the remedy of an appeal is available to the assessee against the Order which necessitated him to deposit the duty under protest, he may file an appeal. Thus, the refund of duty is not available to the Assessee even if it is presumed that the duty was paid under protest in view of the Supreme Court's judgment in Flock (India) case.
(iii) We also agree with the learned SDR that under letter dated 3.1.85, the assessee had claimed to pay excise duty on packing only under protest as the approval of earlier price list was under dispute. There is no reference to payment of duty under protest on account of classification of white cement. In the case of Jain Ceramics Industry v. CCE, 1995 (78) ELT 186, where the protest letter was filed by the party with reference to the denial of exemption under Notification No. 152/71, the Appellants filed refund claiming exemption under revised classification under Item 68, the Tribunal rejected the appeal holding that "this is an entirely new ground clearly not covered by the terms of their protest letter." This decision has been followed by the Tribunal in the case of Workwell Engineering Co. v. CCE, Vadodra, 1999 (64) ECC 645 (T): 1999 (112) ELT 848 (T) wherein the Tribunal agreed with the submissions of the Revenue that even payment of duty under protest is of no help to the appellants for subsequent approval of classification list on the basis of which refund claim has been filed. Para 85 of the judgment in the case of Mafatlal Industries Ltd. does hot advance the case of the assessee as they have themselves particularised the grounds of protest in their letter dated 3.1.1985 and secondly they have not followed the procedure prescribed under Rule 233-B. The Apex Court has clearly observed in Para 85 that "Any person paying the duty under protest has to follow, the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest." We, therefore/allow the appeal filed by Revenue and hold that the claim for refund of excise duty is hit by time limit specified in Section 11B of the Central Excise Act.
10. (i) In respect of refund for the period 15.6.85 to 14.1.86, the Assessee has only raised the plea that bar of unjust enrichment does not apply which will be considered by us later on in this Order.
(ii) The learned SDR, in his written submissions, has contended that as the assessment and approval of classification list has not been challenged by M/s. J.K., the same cannot be challenged by way of filing of refund claim. But the amount has been held to be refundable and Ordered to be credited to the Consumer Welfare Fund and no appeal was filed by Revenue against Order-in-Original and as such, this aspect cannot be considered at this stage.
11.1 In respect of refund for the period from 15.1.1986 to 15.4.88, the contention of the assessee is that the assessments were provisional as the revised classification list filed by them effective from 15.1.1986 was approved only in 15.4.88 and consequently the bar of unjust enrichment will not be applicable in view of Para 95 of the decision in Mafatlal Indus. case.
11.2 The contention of the assessee is not tenable at all even if it is presumed that the assessments were provisional (which has been vehemently opposed by the learned SDR) as the revised classification list was not approved as claimed by the Assessee. The Assistant Collector has approved the classification list rejecting the classification of white cement sought by M/s. J.K. and continued to classify it under Tariff Item 23(2). Thus, the refund has not arisen, out of so-called finalization of the provisional assessment. The issue regarding classification has travelled to Supreme Court through Commissioner (Appeals) and Appellate Tribunal. In view of this itself, it cannot be claimed that refund is consequent upon the adjustment under Sub-rule (5) of Rule 9-B of the Central Excise Rules.
11.3 Moreover, the assessment cannot be treated as provisional merely because revised classification list filed by them had not been disposed of. A classification list filed by them earlier has already been approved classifying the product under Item 23(2) and till the said classification is changed/revised, it continues and goods have to be removed on payment of duty as per the approved classification list. Mere filing of a revised classification list would not make the assessment provisional. Further, it is not the case of the Assessee that they had sought assessment provisional under Rule 9-B of the Central Excise Rules. The reliance placed by M/s. J.K. on the decision of Larger Bench of the Tribunal in Rajiv Mardia's case is misplaced in view of the subsequent judgment of Supreme Court in Metal Forgings, 2002 (84) ECC 705 (SC): 2002 (146) ELT 241 (SC). The Apex Court has specifically held that the judgment in the case of Samrat International, which was followed by the Larger Bench of the Tribunal in Rajiv Mardia case, "was delivered on the peculiar facts of the case and it does not lay down a principle in law which enables the Revenue to treat every classification made by it or the goods removed by virtue of said classification to be treated as provisional merely because some appeal or other proceeding is pending, questioning the classification involved there." The Supreme Court then referred to its decision in Coastal Gases & Chemicals Pvt. Ltd. v. Asstt. CCE, 1997 (92) ELT 460 (SC), which was not followed by the Larger Bench of the Tribunal in Rajiv Mardia case. The Supreme Court has thereafter held that "it is clear that to establish that the clearances were made on a provisional basis, there should be first of all an Order under Rule 9B of the Rules, and then material to show that the goods were cleared on the basis of said provisional basis, and payment of duty was also made on the basis of said provisional classification." In the present matters also these facts are missing as there is neither an Order under Rule 9-B empowering the clearance on the basis of provisional assessment nor there is any material to establish the fact that there was a provisional classification. These facts coupled with the fact that there exists on record classification of the goods under Item 23(2) of the Tariff, clearly establish that assessments were not provisional and provisions of Section 11B of the Central Excise Act are attracted and M./s. J.K. have to prove that the incidence of duty, of which refund is sought, has not been passed on to others.
11.4 In respect of refund for the period 16.4.1988 to 6.9.88, the contention of M/s. J.K. is that, as the Commissioner (Appeals) vide Order No. 86/89 dated 25.7.89, has remanded the Assistant Collector's Order dated 15.4.88 regarding classification of white cement in Tariff Item 23(2) on account of not following the principles of natural justice, the issue of classification remained pending till the same was decided afresh by Order dated 22.1.90 and during this period the assessment would be treated as provisional. There is no force in the said contention as even if the decision in Samrat International applies, setting aside of an Order would not make the assessment provisional for the past period as the liability to duty was discharged as per the Order in force during that period. Secondly, the issue regarding classification was again decided against the Assessee and as such no refund has arisen consequent upon approval of classification list making them eligible for any refund under Sub-rule (5) of Rule 9B of the Central Excise Rules, 1944. Thirdly, the issue regarding classification was finally decided by the Supreme Court vide judgment dated 12.5.98 and as such provisions of Section 11B of the Central Excise Act, particularly provisions containing principles of unjust enrichment are applicable.
12.1 The learned Senior Advocate has divided the period from 7.9.88 to 23.9.91 into three parts. In respect of refund for the period from 7.9.88 to 20.4.98, his contention is that the assessments were provisional under Rule 9B as the price lists submitted with effect from 7.9.88 were provisionally approved and all the price lists relating to this period were approved finally by Order dated 27.7.90 of the Assistant Collector against which no appeal had been filed.
12.2 In respect of period from 21.4.89, 20.6.90, the contention of the assessee is that the price lists were provisionally approved under Rule 9B and Orders of final approval were passed on 11.6.90 and 21.6.90 against which no appeals were filed.
12.3 We find no force in the submissions made by the assessee that as the assessment was provisional on account of valuation, the assessment should be considered to be provisional far all purposes and as final decision of the Supreme Court on classification was not a decision against the "Final Order" passed under Sub-rule (5) of Rule 9B, latter part of para 95 of the judgment in Mafatlal Industries case would not apply and accordingly provisions of Section 11B relating to unjust enrichment would not be applicable. First of all it is not in dispute that the classification issue stood decided by the Proper Officer and there was no provisional assessment on the basis of classification of white cement. Secondly, the refund of duty sought by M/s. J.K. has not arisen on account of finalization of provisional assessment in respect of valuation under Sub-rule (5) of Rule 9-B of the Central Excise Rules, 1944. Once the refund claim has not been filed in pursuance of finalization of Provisional Assessment under Rule 9-B(5), para 95 of Mafatlal Industries judgment is not applicable. Sub-rule (5) of Rule 9-B provides that when the duty leviable is assessed finally, they duty provisionally assessed shall be adjusted against the duty finally assessed and if the duty provisionally assessed is in excess of duty finally assessed, the assessee shall be entitled to a refund. There is no material brought on record to show that the refund of duty being considered had arisen on account of finalization of provisional assessment. As refund is not consequent upon the adjustment under Sub-rule (5) of Rule 9-B, the same is governed by Section 11-B of the Act. Thirdly, it is not open to the assessee to contend on the one hand that the assessment is provisional even in respect of classification list and to contend on the other hand that the judgment of the Supreme Court dated 12.5.98 in the matter of classification is not judgment against the Final Order passed under Sub-rule (5) of Rule 9-B. Once the assessment on account of classification is deemed to be provisional, any Order-in-Appeal passed in respect of classification is deemed to have been passed against finalization of assessment. In such a situation, the latter part of para 95 of Mafatlal Industries judgment will apply which reads as under:
"However, if the final orders passed under Sub-rule (5) are appealed against --or questioned in a Writ Petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed -- then any refund claim arising as a consequence of the decision in such appeal or such other proceedings as the case may be, would be governed by Section 11-B."
12.4 The learned senior Advocate has contended that "the latter part of para 95 of the Mafatlal judgment which purports to carve out an exception in respect of the entitlement to refund on the basis of the order of an appellate authority against the "Final Order" passed under Rule 9B(5) has no legal basis. This Tribunal is not competent to consider this contention as this is the law pronounced by the Highest Court of Land and the law pronounced by the Supreme Court is the law of the land.
12.5 The learned Senior Advocate has also not rebutted the submissions that the duty paid during this period has been taken as Modvat Credit by M/s. Snowcem India Ltd. which shows that the incidence of duty has been passed on by them to others.
13.1 In respect of refund for the period from 21.6.90 to 23.9.91, the contention of the assessee is that out of seven price lists filed by them, price list effective from 21.6.90 was provisionally assessed and the Asstt. Collector passed an order dated 18.12.90 which was set aside by Commissioner (Appeals) by Order-in-Appeal dated 5.3.1991 against which Revenue filed appeal before the Tribunal. The other price lists were assessed provisionally after the Order-in-Appeal dated 5.3.1991 was passed by the Commissioner (Appeals) alongwith price list effective from 21.6.1990. The Tribunal, in view of the judgment of the Supreme Court, on classification issue, observed, in Final Order dtd. 10.9.98 that the issue of valuation has become academic and directed the Departmental Authorities to dispose of the pending cases of valuation accordingly. The contention of the assessee is that as the assessments were finalised under Rule 9-B(5) on 9.11.98, they are entitled to receive refund of excess duty paid.
13.2 As for this period also, the provisional assessment was only in respect of valuation, in view of our findings contained in para 12.3 of this Order, provisions of Section 11B of the Central Excise Act are attracted. In addition, the final assessment in respect of one price list was challenged in appeal and after passing of final Order dated 16.10.98 by the Tribunal, the assessments were finalized by the Superintendent with demand of nil amount of duty. There is nothing on record to show that as a result of finalization of assessment any refund of duty had arisen after adjustment of duty provisionally assessed. As no refund of excess duty paid has arisen as a result of finalization of provisional assessment, it cannot be claimed by the assessee that refund of duty in question has arisen consequent upon the adjustment under Sub-rule (5) of Rule 9B.
14.1 In respect of refund for the period 24.9.91 to 17.10.91, the contention of the assessee is that they were allowed to clear the goods on the basis of provisional assessment in terms of Rule 9B vide Assistant Collector's Order dated 12.11.1991 and in view of this specific Order, Section 11B would have no application and the refund would be payable as per para 95 of the decision in Mafatlal's case.
14.2 A perusal of the Order dated 12.11.91 reveals that the assessee in their classification list effective from 16.10.91 claimed classification of white cement under Sub-heading 2502.20 of the present Central Excise Tariff and claimed exemption from payment of duty in excess of Rs. 90 P.M.T. in terms of Notification No. 24/91-CE, dated 25.7.1991. It further reveals that the Assistant Collector, pending finalization of the classification list allowed the assessee "to clear the goods on payment of duty at the rate claimed by them in the classification list ..... subject to furnishing of Bond B-13 for the amount equivalent to duty difference between the rate otherwise applicable and rate applicable under Notification No. 24/91-CE dated 25.7.91, alongwith security for the amount equivalent to 50% of the bond amount, by the assessee."
14.3 As M/s. J.K. were allowed to clear the goods on payment of duty at the rate claimed by them in the classification list, question of any refund of duty does not arise as no duty in excess was required to be paid in terms of the Order under Rule 9B of the Central Excise Rules. It appears from the Order-in-Original No. 18/2003 (Refund) dated 27.5.2003 that the assessee had paid the duty at the higher rate which fact was mentioned in the refund claim filed by them on 30.10.91. Such a refund of duty cannot be treated as a refund consequent upon the finalization of the Provisional Assessment. Further, the learned SDR has contended that Department has proved by relying on the respective gate passes that the duty as shown therein had actually been recovered from the buyers and M/s. Snowcem India Ltd. had availed of Modvat Credit. In view of this, M/s. J.K. have to get over the bar of unjust enrichment in respect of their claim for refund of duty during this period also.
15.1 The Apex Court in the judgment in the case of Mafatlal Industries has held that "A claim for refund,......, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of the duty to another person/other persons......Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement." The Supreme Court has also observed that "The doctrine of unjust enrichment is a just and salutory doctrine. No person can seek to collect the duty from both ends." The main plea of assessee, in respect of non-application of bar of unjust enrichment, is that during the entire period in question they were incurring heavy losses on account of the fact that they were selling the white cement at a price which was below its cost of production and they were thus paying excise duty out of the price recovered from their customers which did not include the element of excise duty. In support of this they have submitted a certificate from Cost Accountant and an affidavit of Shri J.P. Bajpai, Company Secretary and Principal Officer of M/s. J.K. Synthetics Ltd.
15.2 The submission, though attractive, does not help the assessee at all as the said submission is not well founded. M/s. J.K. may not be in a position to market their product, as per the cost of manufacture, in the initial years of their operation. The fact, however, remains that at whatever price they sold their white cement, Central Excise duty thereon was collected from the customers and some of such customers did take Modvat Credit of duty paid on white cement used by them in relation to manufacture of their final products. In fact they have not pressed their claim for refund of duty with regard to supplies made to Snowcem. It has also not been denied by them that in the questionnaire submitted on 9.6.68 clearly mentions answer as "Yes" to the question "are you collecting from your buyers the same excise duty as you are paying to the Department". Once the duty of excise as paid by them is collected from the buyers, bar of unjust enrichment applies. It is not material that owing to market forces, the cost of production may be higher than the average wholesale price. In CCE, Mumbai-II v. Allied Photographies Ltd., 2004 (92) ECC 777 (S C): 2004 (166) ELT 3 (SC), the Apex Court has stated that "uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors." Once the duty, even on price less than the cost of products, is passed on to the buyer, the manufacturer cannot collect the duty from the State on the ground that it has been collected from him contrary to law. The doctrine of unjust enrichment is that no person can be allowed to enrich inequitable at the expense of another. As observed by the Supreme Court in Mafatlal Industries case "the real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim the refund." The assessee has in the present cases not succeeded in establishing that the incidence of duty of excise in relation to which refund is claimed has not been passed only by them to their buyers. In view of this, the amount of duty determined to be refundable has to be credited to the Consumer Welfare Fund.
16. Coming to the aspect of interest, we find submissions made by the assessee not well-founded. First of all refund for the period from September, 1984 to 14.6.85 has been held to be time-barred, question of interest in respect of such amount does not arise. Secondly, once the amount is credited to Consumer Welfare Fund, they are not eligible to any interest as the amount of refund paid to them is 'nil'. Thirdly, as learned SDR has submitted, the Hon'ble High Court of Delhi has only passed the Order dated 20.4.92 in CW 778/92 to the effect that the petitioner may claim the interest on refund before the appropriate authority or move the High Court afresh. Thus, the claim of interest has to be considered in accordance with law. Interest on delayed refund is provided under Section 11BB of the Central Excise Act, which came in force with effect from 26.5.1995. Interest under this Section is admissible only when any duty is ordered to be refunded under Sub-section (2) of Section 11B to any applicant and the duty is not refunded within three months from the date of receipt of application under Section 11B(1) of the Central Excise Act. As in the present matters, no duty has been ordered to be refunded to the applicant, they are not eligible for any interest on the amount of duty ordered to be credited in Consumer Welfare Fund. Proviso to Section 11BB of the Central Excise Act is not applicable to the present matters because no duty has been ordered to be refunded to the applicant that is M/s. J.K. under Sub-section (2) of Section 11B. We, therefore, reject the appeal filed by M/s. J.K. White Cement Works.