Custom, Excise & Service Tax Tribunal
Konark Fixtures Ltd vs Commissioner Of Central Excise on 24 August, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/1253/2008 Arising out of OIA-KKS/275/DAMAN/2008 dt 28.7.2008 passed by the Commissioner of Central Excise, CUSTOMS (Appeals) - DAMAN Konark Fixtures Ltd - Appellant(s) Vs Commissioner of Central Excise, CUSTOMS (Appeals)-DAMAN - Respondent(s)
Represented by For Assessee : Shri Paritosh Gupta, Advocate For Revenue : Shri J Nagori, Authorised Representative For approval and signature :
Dr. D.M. Misra, Hon'ble Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes CORAM :
Dr. D.M. Misra, Hon'ble Member (Judicial) Date of Hearing / Decision : 24/8/2016 ORDER No. A/11861 / 2016 dt 24/8/2016 Per : Dr D.M. Misra, Heard both sides.
2. This appeal is filed against OIA-KKS/275/DAMAN/2008 dt 28.7.2008 passed by the Commissioner of Central Excise, CUSTOMS (Appeals), DAMAN.
3. The brief facts of the case are that the appellant had filed refund claim for Rs.6,13,406/- on 11.7.2005, on the ground that initially they had paid Education Cess for the period from July 2004 to Jan. 2005 under wrong head utilising CENVAT credit of basic excise duty and also debiting PLA, but later on being pointed out by the audit, same was paid to the correct head alongwith interest. Subsequently, the appellant had filed a letter on 25.4.2006 addressed to the Range Superintendent, requesting that the refund claim filed on 11.7.2005 be revised from Rs.6,13,406/- to Rs.9,76,135/-. A show cause notice was issued to them on 05.10.2007 proposing rejection of said refund claim of Rs 6,13,406/- and also the additional amount of Rs. 3,62,729/- claimed on 24.4.2006 under Section 11B of CEA, 1944 on the grounds set out in the said notice. On adjudication, the claim of Rs.6,13,406/- under Section 11B of CEA, 1944 was sanctioned but without interest and the additional claim of Rs. 3,02,729/- was rejected being hit by limitation prescribed under Section 11B of CEA, 1944. Aggrieved by the said order, the appellant filed an appeal before the Ld Commissioner (Appeals), who in turn, upheld the order of the Adjudicating Authority and rejected their appeal. Hence, the present appeal.
4. The Ld Advocate for the appellant has submitted that the Ld Commissioner (Appeals) has erred in not considering their submission that interest was payable for the delayed period of refund of Rs. 6,13,406/-, as the amount was refunded three months after the date of filing of the refund claim. Also, he has submitted that the refund amount of Rs 3,62,729/-, has been wrongly rejected as barred by limitation. It is his contention that it is an amendment to the original refund claim of Rs.6,13,406/-, arose out of the same issue of payment of education cess to wrong head, hence, through their letter dt 24.4.2006, they had requested to revise the refund claim as Rs.9,76,135/- instead of Rs 6,13,406/-, therefore, the refund amount of Rs 3,62,729/- is not barred by limitation.
5. Per contra, the Ld AR for the Revenue submits that the refund claim of Rs 6,13,406/- and the additional claim of Rs 3,62,729/- were made on different dates, i.e. on 11.07.2005 and 24.04.2006, respectively. Hence, the total claim of Rs 9,76,135/- cannot be considered as the claim filed on 11.7.2005. It is his contention that the appellant had filed the refund claim on 11.7.2005 and the Dept is supposed to process and decide the refund claim within three months from the date of the refund claim. However, due to some reason, the refund claim could not be finalized within three months. Pending sanction of the said claim through the letter dt 24.4.2006, they sought to revise the refund claim from Rs 6,13,406/- to Rs 9,76,135/- by claiming that the amount of Rs 3,62,729/-, also result of erroneous payment of education cess earlier and paid subsequently into the correct head. He has submitted that since the refund claim of Rs 3,62,729/- was filed through letter dt 24.4.2006 separately, and the said amount was debited initially in January 2005, the same cannot be considered along with refund claim of Rs 6,13,406/-, accordingly, the authorities below, had rightly held that the same was filed beyond the period of limitation.
6. I find that the appellant had claimed refund of Rs 6,13,406/- on 11.7.2005 enclosing all relevant documents with refund application in support of their claim. The said refund claim was admittedly not sanctioned within three months from the date it was filed, but sanctioned on 30.01.2008. The relevant provision governing payment interest on delayed refund prescribed at Section 11BB of CEA,1944, reads as follows :
[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, 2[not below five per cent. and not exceeding thirty per cent. per annum as is for the time being fixed 3[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 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 4[, National Tax Tribunal] or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.]
7. The Honble Supreme Court in the case of Ranbaxy Industries Ltd. Vs. UOI 2011(273)ELT.3(SC), interpreting the aforesaid provision, observed that interest is payable after expiry of three months from the date of filing of the refund claim. Therefore, the appellants are eligible to interest on Rs. 6,13,406/- on expiry of three months from the date of filing of the refund claim till the same was paid to them.
8. Regarding the amount of Rs 3,62,729/-, I find that the same was claimed for the first time on 24.4.2006 with a request to revise the earlier refund claim of Rs.6,13,406/- to Rs. 9,76,135/-. In their reply to the show cause notice dt 29.10.2007 at para 20, it is specifically requested by the appellant that the refund claim has been revised by including the additional amount of Rs 3,62,729/-. I find that The Appellant are claiming on one hand interest under Section 11BB of CEA,1944 for the delayed period of refund of Rs 6,13,406/- from the date of its filing i.e. from 11.7.2005 on expiry of three months, and on the other hand, through letter dt 24.4.2006, they sought revision of the refund claim from Rs 6,13,406/- to Rs 9,76,135/- by including the additional amount of Rs. 3,62,729/- paid erroneously earlier. In my opinion, merely because the refund claim of Rs 6,13,406/- had been pending beyond three months, it cannot provide a right to the appellant to revise the claim antedated by including additional amount of Rs 3,62,729/-, which was not because of any arithmetical error incalculation but arose on account of separate payments earlier i.e. between July 2004 and January 2005. Therefore, in my view, the authorities below had rightly held that the additional amount of Rs 3,62,739/- claimed through letter 24.4.2006 could not be considered as the claim filed on 11.7.2005 and rejected the same claim on the ground of limitation.
In the result, the impugned Order is modified and the appeal is partly allowed to the extent of interest on the claim of Rs. 6,13,406/- for the delayed period observed as above. The appeal is partly allowed.
(Operative part pronounced in the Court) (D.M. Misra) Member (Judicial) swami ??
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