M/S. Bazpur Co-Operative vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 20-CE/MRT-II/2013 dated 28.2.2013 passed by Commissioner of Customs & Central Excise (Appeals), Meerut II]

For approval and signature:

Honble Mr Ashok Jindal, 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. Bazpur Co-operative Appellants Sugar Factory Ltd.

Vs.

Commissioner of Central Excise Respondent

Meerut II

Appearance:

Shri Bipin Garg, Advocate for the Appellants

Ms. Ranjana Jha, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 22.1.2015

FINAL ORDER NOS. A/ 50269 /2015-ST(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein interest is denied to the appellant.

2. The facts of the case are that the appellant paid certain amount on 31.3.04 under protest. The refund of the said amount was finally sanctioned as per CESTAT order dated 18.4.2012 wherein it was held that appellant is entitled to refund of the said amount, and the refund claim was sanctioned to the appellant of 5.12.2012 as they have filed the application on 10.9.2012 which was received in the office of concerned authorities on 13.9.2012. The contention of the appellant is that as they have filed the refund claim on 2.08.2006, after 3 months i.e. from 2.11.2006, they are entitled for interest upto 5.12.2012. Therefore, they asked the Revenue to pay the interest on delayed refund which was denied by the lower authority. Aggrieved from the said order, the appellant is before me.

3. Shri Bipin Garg, advocate, learned Counsel submits that as per section 11BB of the Central Excise Act, 1944, the interest is entitled after 3months from the date when the application for refund is made till the release of refund claim. In support of his contention, he relied upon the decision of Honble High Court of Bombay in the case of Sulaki Chenicals Pvt. Ltd. [2014 (310) ELT 511 (Bom)] and Ranbaxy Laboratories Ltd. [2011 (273) ELT 3 (SC)].

4. On the other hand, learned AR opposed the contention of the learned counsel and submits that in this case whether the appellant was entitled to refund or not was settled by this Tribunal on 18.4.12 and thereafter the appellant filed the refund claim on 10.9.2012 which was received in the office of concerned office on 13.9.12 and within 3 months therefrom, i.e. on 5.12.12, the said refund claim was sanctioned. Therefore, question of payment of interest does not arise. She further submits that concerned authorities were not known whether the appellant has filed the refund claim in the past or not ? She also relied on the decision of Larger Bench of this Tribunal in the case of Indian Thermoplastics (P) Ltd. vs. Commissioner of Customs [2004 (164) ELT 156 (Tri-LB) ]. She submits that in the case of Sulaki Chemicals Pvt. Ltd. (supra) the Honble High Court of Bombay has not considered the decision of the Larger Bench of this Tribunal in the case of Indian Thermoplastics (P) Ltd. and in the case of Ranbaxy Laboratories Ltd. (supra), the Honble Apex Court have not considered the decision of Larger Bench of this Tribunal in the case of Indian Thermoplastics (P) Ltd. therefore these decisions are per incuriam and therefore cannot be relied. In these circumstances, she prays that impugned order is to be upheld.

5. Heard both sides. Considered the submissions.

6. It is not in dispute that appellant has filed initial refund claim on 1.8.2006 of the amount paid on 31.3.2004. The dispute as to whether the appellant is entitled to claim of refund was settled by this Tribunal on 18.4.2012 and thereafter the refund claim was sanctioned on 5.12.12. . Therefore, the only issue to be decided is appellants entitlement to claim the interest due after three months from the date of filing of claim till 5.12.12 or not?

7. In the case of Ranbaxy Laboratories Ltd. (Supra), the Honble Apex Court has dealt the issue in detail and it was held that interest on delayed refund is payable under section 11BB of the Central Excise Act, 1944 on expiry of the period of three months from the date of receipt of application under section 11BB ibid and not from the date of order of refund or appellate order allowing such refund. The contention of the learned AR that the decision of Ranbaxy Laboratories (supra) is per incuriam is contrary to law as the Honble Apex Court is not bound to consider the decision of this Tribunal. The Honble Apex Court has analyzed the issue in detail and thereafter arrived at a decision which is enumerated here as under:

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.

The decision of Honble Supreme Court is the law of land and the same is to be followed by all the Courts of India as per Article 141 of Constitution of India, which provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. Thus, following the decision of the Honble Supreme Court in the case of Ranbaxy Laboratories (supra), I hold that appellant is entitled to claim the interest for the period after three months from 2.8.2006 till 5.12.2012. In these terms, the appeal is allowed with consequential relief, if any.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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