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Classic Tobacco Products V/S CCE, Jaipur

    Appeal No. E/51228/2018-SM (Arising out of Order-in-Appeal No. 27(AK)CE/JPR/2017 dated 25.1.2018 passed by the Commissioner (Appeals), Central Excise & CGST, Jaipur) and Final Order No. 52444/2018

    Decided On, 06 July 2018

    At, Customs Excise Service Tax Appellate Tribunal New Delhi

    By, THE HONORABLE JUSTICE: AJAY SHARMA
    By, MEMBER

    For Petitioner: Sukriti Das, Advocate And For Respondents: H.C. Saini, D.R.



Judgment Text


1. This appeal has been filed from the impugned order dated 25.1.2018 passed by the Commissioner (Appeals).

2. The Appellant was manufacturing tobacco and was working under the Compound Levy Scheme prescribed under Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty Rules) 2010 framed by the Central Government in exercise of powers conferred by sub-section (2) and (3) of Section 3A of the Central Excise Act, 1944 vide Notification No. 11/2010-CE(NT), dated 27.2.2010. They filed a refund claim of duty amounting to Rs. 9,97,500/- u/s. 11B of the Act on 21.12.2011 being abatement of duty due to non production of notified goods from 10.11.2011 to 26.11.2011 under Rule 10 of the 2010 Rules and pro-rata payment of duty from 27.11.2011 to 30.11.2011 under 4th proviso to Rule 9 of the said Rules. The said refund claim was rejected by the Adjudicating Authority as well as by the Appellate Authority. On Appeal filed by the Appellant before this Tribunal, this Tribunal vide order dated 19.7.2016 in Appeal No. E/50152/2014-EX (SM) allowed the appeal filed by the appellant and held that the abatement claim of the Appellant is required to be given for the period from 10.11.2011 to 26.11.2011 and that the same would be re-quantified by the Adjudicating authority and be allowed to the appellant.

3. In view of the order of this Tribunal, the Appellant on 11.8.2016 filed application before the department for refund of the amount of 17 days (i.e. from 10.11.2011 to 26.11.2011) with interest. The Adjudicating authority vide Order-in-Original dated 19.10.2016 although allowed abatement of duty amounting to Rs. 8,07,500/- for 17 days (from 10.11.2011 to 26.11.2011) under Rule 10 of 2010 Rules, but rejected the appellant's claim for interest on the ground that there is no provision for grant of interest under Rule 10 of the 2010 Rules. The Appellate Authority in the impugned order also upheld the view taken by the Adjudicating Authority.

4. I have heard ld. Counsel for the Appellant and ld. AR for the department and perused the record. I have also gone through the complete record of earlier Appeal No. E/50152/2014-EX(SM) filed by the Appellant which has been allowed by this Tribunal vide order dated 19.7.2016. Ld. AR appearing for the department reiterated the findings recorded by the ld. Commissioner (Appeals) and submitted that while deciding the Appeal filed by the Appellant, this Tribunal in its earlier order dated 19.7.2016 did not pass any order on interest and therefore the appellant is not entitle for interest. He further submitted that the matter relating to abatement is governed under rule 10 of the 2010 Rules and not under Section 11B of the Act. The ld. Counsel for the appellant on the other hand submitted that at the time of refund they applied it under section 11BB of the Central Excise Act, 1944 (sic 1944) and that the provisions of Section 11BB of the Act are applicable mutatis-mutandis in this case. According to her, as per Rule 19 of 2010 Rules, all provisions of Central Excise Act and Rules are applicable mutatis mutandis to the 2010 Rules. The said Rule 19 of 2010 Rules is extracted as under:-

"19. Provisions to apply mutatis mutandis.-Except as herein provided, all provisions of the Act and the Central Excise Rules, 2002, including those relating to maintenance of daily stock account, removal of goods on invoice, filing of returns and recovery of dues shall apply mutatis mutandis."
Section 11BB of the Central Excise Act which provides for interest on delayed refunds is also extracted as under:-

"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, not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed 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 that 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 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."

Ld. Counsel for the Appellant cited the decision of the Hon'ble Supreme Court in the matter of Ranbaxy Laboratories Ltd. Vs. UOI; reported in : 2011 (273) ELT 3 (SC) in which the Hon'ble Supreme Court while dealing with the issue of interest on delayed refund, held as under:-

"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."
5. Ld. Counsel for the appellant also relied upon the decision of this Tribunal in the matter of M/s. Prem Products vs. CCE, Agra; reported in 2017 (9) TMI 1541 - CESTAT ALLAHABAD in which Pan Masala Packing Machines (Capacity determination and collection of Duty) Rules, 2008 were in issue and there also the appellant therein claimed interest for delayed refund and this Tribunal while taking into consideration the fact that the refund claim was sanctioned beyond the period of three months, directed that the appellant therein is entitled for interest after three months from the date of filing of refund claim and till the date of sanctioning refund in terms of the law laid down by the Hon'ble Supreme Court in the matter of Ranbaxy Laboratories Ltd. (supra). The relevant paragraphs of the decision of this Tribunal in M/s. Prem Products matter (supra) is extracted as under:-

"4. Considering the fact that as per the Pan Masala Packing Machines (Capacity determination and collection of Duty) Rules, 2008, the assessee required to pay duty on 5th day of the month in advance which appellant did not pay in time, therefore, the same was paid alongwith interest. Later on, the abatement claims were filed for that month and abatement claim was held to be correct. In that circumstances, the claim of the appellant for interest for the abated amount is not sustainable, as per the Pan Masala Packing Machines (Capacity determination and collection of Duty) Rules, 2008 assessee is required to pay duty on the 5th day of the month, therefore, the duty was required to be paid in advance. Therefore, the duty paid by the appellant in terms of Pan Masala Packing Machines (Capacity determination and collection of Duty) Rules, 2008 is required to pay in advance which appellant fail to do so, therefore, the interest is correctly paid by the appellant. Although, the abatement claims have been filed for that period, the appellant is not entitled to claim interest on the abated amount as there is no such provision.

5. I further find that appellant has claimed interest for delayed refund. On perusal of the record, I find that for the month of May, 2012, the abatement claim was filed on 26/07/2012 and for the month of June, 2012, the abatement claim was filed on 22/08/2012 and the refund claim have been sanctioned on 29/11/2012 which is beyond the three months for sanctioning of refund claims. In that circumstances, the appellant is entitled for interest after three months from the date of filing of refund claim and till the date of sanctioning refund in terms

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of decision of Apex Court in the case of Ranbaxy Laboratories Pvt. Ltd. vs. Union of India reported in : 2011 (273) ELT 3 (S.C.)." 6. I found that there is no change in the 2008 Rules and 2010 Rules so far as the issue in the present matter is concerned. In this matter, there is delay in refund of duty from 21.3.2012 to 19.10.2016 and there is no dispute that the appellant had claimed interest on delay refunds after three months from 21.12.2011 i.e. from 21.3.2012 under Section 11BB of the Act and the same has been recorded in the adjudicating order also and the same has only been denied on the ground that this Tribunal has not directed for payment of interest on delay refund and also that there is no provision for grant of interest under Rule 10 of 2010 Rules. Merely because the interest on refund is not directed doesn't mean that it has been refused or rejected. Therefore in view of the discussions made hereinabove and also in view of the decision of the Hon'ble Supreme Court in Ranbaxy case (supra) and of this Tribunal in M/s. Prem Products case (supra), the Appeal is allowed.
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