Custom, Excise & Service Tax Tribunal
M/S. Enlightment99 Software ... vs Commissioner Of Central Excise & S.T., ... on 20 March, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/13218/2013 (Arising out of OIA-PJ/148/VDR-I/2013-14 dated 18.6.2013, Passed by Commissioner (Appeals) Central Excise, & S.T., Vadodara) M/s. Enlightment99 Software Consultants Pvt. Limited : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Vadodara : Respondent (s)
Represented by :
For Appellant (s) : Shri S.R. Dixit, Advocate For Respondent (s) : Shri J. Nair, Authorised Representative For approval and signature :
Mr. H.K. Thakur, Honble Member (Technical) 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? No 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 :
Mr. H.K. Thakur, Honble Member (Technical) Date of Hearing / Decision : 20.03.2015 ORDER No. A/10268 / 2015 Dated 20.03.2015 Per : Mr. H.K. Thakur;
This appeal has been filed by the appellant against OIA No. PJ/148/VDR-I/2013-14 dated 18.6.2013.
2. Shri S.R. Dixit (Advocate) appearing on behalf of the appellant argued that the refund claims filed by the appellant in 2004 were rejected by the adjudicating authority under OIO No. III/ST/632 & 633/Refund/2008-2009 which was upheld by first appellate authority under OIA No. Commr(A)/310 & 311/VDR-I/2010 dated 01.11.2010. That appellants appeal against Order-in-Appeal dated 01.11.2010 was allowed by CESTATs order No. A/700-701/WZB/AHD/2012 dated 16.05.2012. That as a result of CESTATs order dated 16.5.2012 adjudicating authority vide order dated 29.8.2012 sanctioned refund claims of Rs. 3,54,694/- and rejected refund of Rs. 1,05,813/-. It was the case of the learned Advocate that appellant is entitled to interest after three months from the date of filing of refund claims till the date of refund claimed were paid to the appellant under Section 11B and Section 11BB of the Central Excise Act, 1944 which has been denied by the lower authorities. He relied upon Hon'ble Supreme Courts judgment in the case of Ranbaxy Laboratories Limited vs. UOI [2011 (273) ELT 3 (SC)].
3. Shri J. Nair (Authorised Representative) appearing on behalf of the Revenue strongly defended the OIA dated 18.6.2013 passed by the first appellate authority and argued that refund claims were sanctioned and paid to the appellant within three months from the receipt of order dated 16/5/2012 passed by CESTAT.
4. Heard both sides and perused the case records. The issue of relevant dates for charging of interest is no more res-integra. Apex Court has interpreted the provisions of Section 11BB of the Central Excise Act, 1944 in the case of Ranbaxy Laboratories Limited vs. UOI [2011 (273) ELT 3 (SC)]. Relevant paras 9, 10, 14 and 15 of this judgment are reproduced below:-
9.?It is manifest from the afore-extracted provisions 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.
10.?It is a well settled proposition of law that a fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision; there is nothing to be read in; nothing to be implied and there is no room for any intendment. [See: Cape Brandy Syndicate v. Inland Revenue Commissioners, [1921] 1 K.B. 64 and Ajmera Housing Corporation & Anr. v. Commissioner of Income Tax, (2010) 8 SCC 739]. 14.?At this stage, reference may be made to the decision of this Court in Shreeji Colour Chem Industries (supra), relied upon by the Delhi High Court. It is evident from a bare reading of the decision that insofar as the reckoning of the period for the purpose of payment of interest under Section 11BB of the Act is concerned, emphasis has been laid on the date of receipt of application for refund. In that case, having noted that application by the assessee requesting for refund, was filed before the Assistant Commissioner on 12th January 2004, the Court directed payment of Statutory interest under the said Section from 12th April 2004 i.e. after the expiry of a period of three months from the date of receipt of the application. Thus, the said decision is of no avail to the revenue.
15.?In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.
5. In view of the above settled proposition of law appellant is entitled to interest after three months from the date of filing of refund claims to the date of payment of refund amounts, as the date of calculating interest does not get postponed by the favourable decision given by the higher appellate authority. Appeal filed by the appellant is allowed.
(Operative part of the order pronounced in the Court) (H.K. Thakur) Member (Technical) .KL 2