Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise And ... vs M/S. Reliance Industries Ltd on 13 April, 2015
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. E/690, 1251, 1252, 1253/10 MUM (Arising out of Order-in-Appeal No. SB/32-35/LTU/MUM/2010 dated 27.01.2010 passed by the Commissioner of Central Excise & Service Tax, LTU (Appeals) Mumbai.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
1. Whether Press Reporters may be allowed to see : No
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 : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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Commissioner of Central Excise and Service Tax (LTU)
: Appellant
Versus
M/s. Reliance Industries Ltd.
: Respondent
Appearance
Shri H.M. Dixit, Asst. Commr. (A.R.)
: For Appellant
Shri J.C. Patel Advocate with
Ms. Shilpa Balani, Advocate and
Mr. Nikhil Rungta, Advocate
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 13.04.2015 Date of Decision: 13.04.2015
ORDER NO.......................................................
Per: Anil Choudhary:
The Revenue is in appeal against the order of Commissioner (Appeals) granting interest from the date being 3 months from the date of application made for refund. According to Revenue, interest is payable under Section 11B read with 11BB of the Central Excise Act, 3 months after the date of the appellate order.
2. The brief facts are that the respondent-assessee had filed refund claims in the year 2008 which were allowed in part. Being aggrieved they preferred appeal before the Commissioner (Appeals), who vide his order in the year 2009 allowed refund as claimed. Consequent to the orders of Commissioner (Appeals) of Central Excise and Customs allowing the appeal filed by the respondent-assessee against Order-in-Original passed by the Dy. Commissioner of Central Excise and Customs, setting aside the impugned order, the refund claim was filed by the respondent-assessee vide the application dated 16/1/09 duly received by the Revenue on 20/1/09. The assessee informed that they had filed refund application on 11.03.2008 for refund of accumulated CENVAT credit in respect of inputs and input services in terms of Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 11/2002CE, with the Dy. Commissioner of Central Excise. The Dy. Commissioner vide Order-in-Original sanctioned the refund amount of Rs. 4,84,58,922/ and disallowed the part of refund pertaining to input service credit amounting to Rs. 16,67,560/. In appeal the Commissioner (Appeals) allowed the full amount of refund. Thereafter the respondent approached for granting interest on refund along with the refund. However, though refund was allowed of the accumulated CENVAT credit, but the claim for interest was rejected. The respondent again approached the Commissioner (Appeals) against the impugned order who allowed the appeal of the respondent-assessee holding that the assessee is entitled to interest from the end of 3 months from the date of its refund application, filed in 2008. Reliance was placed on the ruling of the Honble High Court in the case of Swaraj Mazda Ltd. 2009 (235) ELT 788 (Bombay) and further reliance was placed on the ruling of this Tribunal in the case of CCE, Hyderabad Vs. Paras Waves - 2008 (224) ELT 295 (Tri.-Bang.). Being aggrieved the Revenue is in appeal before this Tribunal.
3. Heard the parties.
4. It is seen that the issue is no longer res-Integra. The issue is squarely covered by the ruling of the Honble Supreme Court in the case of Ranbaxy Laboratories Limited Vs. Union of India - 2011 (273) ELT 3 (S.C.) delivered vide order dated 21.10.2011 in which it is held that the assessee is entitled to interest on refund from the date on which three months end from the date of application. The relevant paragraphs 9 and 10 of the ruling of the Apex Court are reproduced for ready reference:
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].
5. The Honble Apex Court also took notice of Circular dated 1/10/02 issued by CBEC which referred to its earlier Circular dated 2/06/98, whereby direction was issued to fix responsibility for not disposing of the refund/rebate claims within three months from the date of receipt of application. The Board reiterated its earlier stand on the applicability of section 11BB of the Act. Significantly, the board has stressed that the provisions of Section 11BB of the Act are attracted automatically on any refund which is sanction beyond a period of three months.
6. Thus, these all four appeals filed by the Revenue are dismissed.
(Pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4