Custom, Excise & Service Tax Tribunal
M/S.Micromatic Grinding Technologies ... vs Cce, Ghaziabad on 19 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT IV
Excise Appeal No.E/56801/2013 EX[SM]
[Arising out of Order-in-Appeal No.203-CE/GZB/2012 dated 27.12.2012 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Ghaziabad].
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1. Whether Press reporters may be allowed to see the
order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in
any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
__________________________________________________
M/s.Micromatic Grinding Technologies Ltd. Appellant
Vs.
CCE, Ghaziabad Respondent
Present for the Appellant : Shri Rahul Gandhi, Advocate
Present for the Respondent: Shri G.R. Suri, Advocate
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 19.05.2015
FINAL ORDER NO. 53000/2015
PER: S.K. MOHANTY
Short question involved in this appeal for consideration by this Tribunal, is as to whether, the appellant is eligible for interest in terms of Section 11BB of the Central Excise Act, 1944 for delayed sanction of refund amount beyond the period of three months from the date of filing the claim application.
2. Brief facts of the case are that on 20.10.2011, the appellant filed the refund application before the jurisdictional Central Excise Authorities, claiming refund of excess amount of duty paid in the month of February, 2011. The refund application was rejected by the Deputy Commissioner of Central Excise vide his order-in-original dated 30.01.2012 on the ground that the calculation sheet, computing the refund amount has not been enclosed to the refund application and that no proof has been produced to substantiate that the incidence of excess paid duty has not been transferred to the buyer of goods. Being aggrieved with the said order, the appellant preferred appeal before the Commissioner (Appeals), who vide order dated 22.05.2012, allowed the appeal by way of remand and directed the original authority to re-consider the refund claim subject to verification of relevant documents/ records. Pursuant to the said remand directions, the original authority completed the denovo adjudication proceedings based on the available records and those furnished by the appellant during such proceedings vide Order-in-Original dated 31.08.2012, allowing the refund claim in favour of the appellant. Since, payment of interest for delayed sanction of refund amount was not considered in the order dated 31.08.2012, the appellant preferred appeal before the Commissioner (Appeals). The appeal was rejected by the Commissioner (Appeals) vide the impugned order, holding that since the desired documents were furnished on 16.07.2012 and thereafter the adjudication order was passed on 31.08.2012, there was no delay in sanction of refund, which calls for payment of interest by the Department. Hence, the present appeal before this Tribunal.
3. I have heard the ld. Counsel for both the sides and perused the records.
4. Ld. Consultant appearing for the appellant submits that as per the statutory mandates, the refund has to be sanctioned within three months from the date of filing of the application, claiming refund of the excess paid duty; and that if the refund is sanctioned beyond such time limit, then the interest is required to be paid under Section 11BB of the Act for delayed sanction of refund. He further submits that the documents namely, ER-I return and the copy of PLA desired by the Department vide letter dated 11.07.2012, were all available with the Department and, therefore, it cannot be said that through said documents, the Department gathered some additional/new information which were not available at the time of filing the refund application. With regard to filing of affidavit at a later date that the incidence of duty burden has not been passed on to the buyer of the goods, the submissions of the ld. Counsel is that the unjust enrichment aspect has been dealt with by the Commissioner (Appeals) vide order dated 22.05.2012, holding that the excess /double payment of duty has not been recovered from the customers. To justify his stand that the appellant is entitled for interest, the ld. Counsel has relied on the decision of the Tribunal in the case of Topland Exports vs. CCE, Rajkot reported in 2013 (297) ELT 298 (Tri. Ahmd.).
5. On the other hand, the ld. DR appearing for the Revenue reiterates the findings recorded in the impugned order and further submits that since the refund was sanctioned within a period of three months from the date of submission of the desired documents, there was no delay on the part of the Department, and thus, the appellant is not entitled for the interest.
6. Section 11 BB of the Act provides that if any duty ordered to be refunded under sub-section (2) of section 11B to any applicant, if not refunded within three months of receipt of application, then the applicant is entitled for interest at the prescribed rate from the date immediately after expiry of three months from the receipt of such application, till the date of refund of such duty. In the present case, the fact is not in dispute that the refund application, complete in all respect was filed by the appellant on 20.10.2011 and documents namely, ER-I return and the copy of PLA for the relevant period subsequently desired by the Original Authority and submitted by the appellant pursuant to the remand direction by the Commissioner (Appeals), were all along available with the Departments. Further, I find from the grounds of appeal filed by the appellant that on examination of refund claim, the Range Officer vide letter dated 26.12.2011 had submitted a report to the refund sanctioning authority, stating that the refund claim is admissible to the appellant. Since, genuineness of such report of the Range Officer has not been questioned by the ld. DR for Revenue; I am of the firm view that the date of filing the refund application by the appellant on 20.10.2011 should be taken into consideration for the purpose of determination / computation of the interest liability. Therefore, in view of the fact that the refund application filed by the appellant on 20.10.2011 was ultimately entertained and sanctioned by the original authority on 31.08.2012, which is beyond the statutory time limit prescribed under section 11BB of the Central Excise Act, in my opinion, the appellant should be entitled for interest for the period beyond 3 months from the date of filing refund application, till the date of actual payment of refund amount. In other words, in this case, the appellant is entitled for interest from 20.01.2012 to 30.08.2012.
7. The question of unjust enrichment aspect has been dealt with by the Commissioner (Appeals) in the order dated 22.05.2012, wherein upon proper verification of the documents, he had arrived at the conclusion that double payment of duty for which the refund claim lodged by the appellant, has not been recovered from the customers. The said order has been accepted by the Department, in view of the fact that no appeal has been filed against such order. Thus, the Revenues stand in this font is not maintainable.
8. In view of the above, the appeal filed by the appellant is allowed by setting aside the impugned order. The original authority is directed to compute the interest amount as per the mandates of section 11BB of the Act and pay the same forthwith to the appellant.
(Dictated and pronounced in the open Court) (S.K. MOHANTY) MEMBER (JUDICIAL) Anita ??
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