Bombay High Court
The Commissioner Of Conetral ... vs Sterlite Industries Ltd on 4 August, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO. 26 OF 2016
The Commissioner of Central Excise,
Customs & Service Tax- Silvassa,
4th Floor, Adarshdham Building,
Opp. Vapi Town Police Station,
Vapi-Daman Road, Vapi-396191. ....Appellant.
Vs.
Sterlite Industries Ltd.,
Copper Division, 209-B,
Piparia Industrial Estate,
Silvassa-396230. ....Respondent.
Mr. Pradeep S. Jetly for the Appellant.
Mr. Vishal Agrawal a/w Ms. Isha Shah, Mr. P.k. Shetty i/by P.K. Shetty
for the Respondent.
CORAM : ANOOP V. MOHTA AND
SMT. ANUJA PRABHUDESSAI, JJ.
RESERVED ON : 21 JULY 2017.
PRONOUNCED ON : 4 AUGUST 2017.
JUDGMENT (PER ANOOP V. MOHTA, J.):-
This is a State/Revenue Appeal, filed under Section 35G of
the Central Excise Act, 1944, (for short, "the Excise Act"). The
Challenge is made, by raising following proposed substantial question
of law-
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"Whether interest is payable to the Respondent for
the period 27-12-2005 to 09-03-2006, on the
refund granted under Rule 5 of the CENVAT
Credit Rules, 2004, even though they had not
submitted all the relevant document along with
the original refund claim of Rs.7,11,45,917/-
filed on 27-09-2004 and which was consequently
revised by the Respondent to Rs.7,13,23,821/- on
08-12-2005 and sanctioned on 09-03-2006?
2 The Appellant, being aggrieved by order passed by the
Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench,
Ahmedabad (for short, "the Appellate Tribunal"), in favour of the
Respondent, preferred this Appeal. The issue in the Appeal is
regarding payment of interest for delay in sanctioning of the
Respondent's refund claims.
3 Both the learned counsel for the parties read and referred
the facts and the provisions of law specifically, Section 11BB of the
Excise Act and Rule 5 of Cenvat Credit Rules, 2004 (for short, "the
Rules"). The Judgments are also cited by the parties.
4 Admittedly, the refund application was filed on 27
September 2004 for Rs.7,11,45,917/-. The same was sanctioned on 9
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March 2006 for Rs.6,45,83,460/-. The other amount was rejected, as
time barred. The refund claim was decided in pursuance to the
provisions read with Notification No.11/2002-CE(NT) dated 1 March
2002. This is also on the foundation that the interest provisions are
applicable to such refund cases. Though certain queries were raised
on 3 November 2004, by the Assistant Commissioner, Central Excise
Division-II, Silvassa, but the refund application was not decided
and/or returned, including the claim of the Respondent. There is
nothing to show that for want of documents and/or otherwise, the
said application was rejected. There was delay in sanctioning the
refund claim from three months after 27 September 2004 to 9 March
2006. The entitlement of interest, therefore, decided and by the
impugned order the Respondent's Appeal was allowed.
5 The Supreme Court in Union of India Vs. Hamdard (WAQF)
Laboratories 1 , while dealing with the interest of delayed refund is
payable under Section 11BB of the Central Excise Act on expiry of
three months from date of receipt of application from such date till
date of refund of duty, has observed that-
1 2016 (333) E.L.T. 193 (S.C.)
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21. .....................It is obligatory on the part of the
Revenue to intimate the assessee to remove the
deficiencies in the application within two days and, in
any event, if there are still deficiencies, it can proceed
with adjudication and reject the application for
refund. The adjudicatory process by no stretch of
imagination can be carried on beyond three months. It
is required to be concluded within three months. The
decision in Ranbaxy Laboratories Limited [2011
(273) E.L.T. 3 (SC)] commends us and we respectfully
concur with the same.
6 The Gujarat High Court, in the judgment of Commissioner
of Central Excise Vs. Reliance Industries Ltd. 2 in para 11, observed as
under:-
"11. There is a basic fallacy in the premise on
which the contention of Revenue is based. CENVAT
credit is nothing else but credit for duty paid by the
supplier of inputs, which are dutiable goods
manufactured by the supplier or dutiable services
rendered by the service provider. In principle such
goods/services when utilised for further manufacture
or providing service which are dutiable already carry
the duty paid component as a part of its price/value,
and hence the duty payable on the ultimately
manufactured goods/services rendered stands reduced
to the extent of duty already paid on the inputs. Thus
the duty paid on inputs by the supplier has already
been actually received by the exchequer. Therefore, this
contention is, to say the least, misconceived.
quote.
2 2010(259) E.L.T. 356 (Guj.)
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7 In view of above, the Judgments Kelvinator of India Vs.
Commissioner of Central Excise, Jaipur 3 and Ahmedabad Steel Craft Vs.
Commissioner of C. Ex., Ahmedabad 4 , cited by the learned counsel
appearing for the Appellant-Revenue, are of no assistance to accept
the case and/or proposed question of law to be decided. The Supreme
Court findings and the provisions of law, so declared, as reproduced
above, in our view, conclude the issue in favour of the Respondent and
against the Revenue Department.
8 Therefore, taking overall view of the matter, we see that
there is no any illegality and/or perversity in the order passed by the
Appellate Tribunal. There is no substantial question of law involved in
the matter.
9 The Revenue Appeal is, therefore, dismissed. There shall
be no order as to costs.
(ANUJA PRABHUDESSAI, J.) (ANOOP V. MOHTA, J.)
3 2004 (167) E.L.T. 365 (Tri.-Del.)
4 2003 (153) E.L.T. 343 (Tri.-Del.)
