Interest on Refund U/s. 11BB Limited to Statutory Delay: CESTAT Allahabad

Kanpur Edibles Pvt. Ltd Vs Commissioner of Central Excise & & CGST (CESTAT Allahabad)

The appeal arose from an order of the Commissioner (Appeals), Allahabad, affirming an Order-in-Original that sanctioned refund of central excise duty paid under protest but rejected the claim for interest. The appellant, a manufacturer of refined vegetable oils, had claimed exemption from central excise duty on fatty acids and residues generated during manufacture. Revenue disputed the exemption and issued repeated show cause notices, following which the appellant deposited duty under protest without passing on its incidence to customers. Earlier proceedings concerning the dispute were ultimately decided in the appellant’s favour by the Tribunal, and the Revenue accepted those decisions. Thereafter, proceedings for subsequent periods were also dropped, leading the appellant to file a refund claim under Section 11B of the Central Excise Act, 1944. The refund was sanctioned, but interest was denied.

Before the Tribunal, the appellant contended that the amount deposited under protest was not “duty” but a “revenue deposit” and therefore interest should be granted from the date of deposit until the date of refund. It relied on Article 265 of the Constitution, Section 72 of the Indian Contract Act, 1872, CBEC Circular No. 984/08/2014-CX, and judicial precedents to argue that the Department had retained money without legal authority and that the appellant was entitled to restitution. The appellant also argued that there had been delay in processing the refund application and sought interest both from the date of deposit and for the alleged delay in granting the refund.

The Tribunal examined the findings of the Commissioner (Appeals), who had held that duty paid under protest remains a duty deposit under Section 11B and not a final revenue deposit. Consequently, any entitlement to interest on refund is governed exclusively by Section 11BB of the Central Excise Act. Under Section 11BB, interest becomes payable only if the refund ordered under Section 11B is not granted within three months from the date of receipt of the refund application. Since the refund had been sanctioned within the statutory period contemplated under Section 11BB, the authority held that no interest was payable and that the question of the applicable rate of interest did not arise.

The Tribunal further held that the issue was squarely covered by the Constitution Bench decision of the Supreme Court in Mafatlal Industries. It noted that the Supreme Court had recognised the Central Excise Act as a self-contained code governing refund claims and had held that claims for refund of duty collected under an alleged mistake of law must be pursued only under the statutory provisions of Section 11B. The Supreme Court had also ruled that Article 265 of the Constitution and Section 72 of the Contract Act cannot be invoked to bypass the statutory refund mechanism, except in cases involving unconstitutional levy. The Tribunal relied on these principles to reject the appellant’s contention that interest should be awarded from the date of deposit by treating the amount as a revenue deposit outside the statutory framework.

Accordingly, the Tribunal concluded that the amount paid under protest retained its character as duty deposited under protest and continued to be governed by Sections 11B and 11BB of the Central Excise Act. Since the refund had been sanctioned in accordance with the statutory provisions and there was no delay attracting Section 11BB, the appellant was not entitled to interest from the date of deposit or any additional interest beyond what the statute expressly provides. The Tribunal found no infirmity in the impugned order, upheld the rejection of the claim for interest, and dismissed the appeal.

FULL TEXT OF THE CESTAT AHMEDABAD ORDER

This appeal is directed against Order-in-Appeal No.31/ST/APPL/ALLD/2026 dated 15/01/2026 passed by Commissioner (Appeals) Customs, Central Excise & Services Tax, Allahabad. By the impugned order the appeal filed by the appellant against order in original No 01/Refund/C.Ex/ Kampur Edible/AC/Div-KD/2025 dated 8.09.2025 allowing the refund claim filed by the appellant without any interest on the delayed payment of same has been dismissed.

2.1 Appellant is registered under Central Excise Department vide Registration No.AAECS2988JXM001 and engaged in manufacture of fixed/ refined vegetable oils falling under Chapter Heading 1507, 1508, 1511, 1512, 1514, 1515 and 1516 of First Schedule to Central Excise Tariff Act, 1985 exempted from payment of duty as per Notification No 03.2006-CE dated 01.03.2006 as amended.

2.2 During course of manufacture of the vegetable oils as above bye products fatty acid and residues classifiable under Chapter Heading 3823 and 1522 respectively also emerged. Appellant was paying duty on these bye products till January 2008. Thereafter they started claiming exemption under Notification No. 89/95-CE dated 18.05.1995.

2.3 Revenue objected to the claim made by the appellant that residue and fatty acids are exempted vide Notification No 85/95-CE and show cause notices were issued to the appellant on regular basis denying the benefit of exemption and demanding the central excise duty due on this products.

2.4 Appellant as directed by the revenue deposited duty in respect of Fatty Acids or other by-products at the time of clearance of the said goods under protest and also did not recover the same from their consumers.

2.5 The matter in respect of the period prior to January 2014 were adjudicated by the jurisdictional authorities confirming the demand. On appeal, Commissioner (Appeals) set aside the order confirming the demand. Revenue filed appeal before the tribunal. The Tribunal vide Final Order No. A/70692-70709/2018-EX[DB] dated 27.02.2018, 72736/2018 dated 29/11/2018, 72794­72795/2018 dated 05.12.2018 decided the issue in favour of the appellant. The Final Order of the Tribunal was been accepted by the Competent Authority as informed by the Assistant Commissioner (Review), vide letter dated 11.11.2024 on 09.08.2024.

2.6 The statement of demands in terms of Section 11A(7A) as detailed in table below were taken up for adjudication by the jurisdictional Additional Commissioner.

Period	Amount (Rs)	Issue Date
October 2013 to December 2013	969813	31.10.2014
January 2014 to July 2014	1987934	31.10.2014
August 2014 to February 2015	3080773	03.09.2015
March 2015	480071	04.04.2016
April 2015 to October 2015	4062761	04.04.2016

Additional Commissioner vide Order in Original No 15/C Ex/Kanpur Edibles/AC/Div KD/20125 dated 30.03.2025 and 19/C Ex/Kanpur Edibles/AC/Div KD/20125 dated 30.03.2025, dropped the proceedings.

2.7 Appellant filed a refund claim on 28.04.2025 for Rs.50,77,948/- for the period from January, 2014 to February, 2015 seeking refund of the amounts deposited by them under protest in respect of demands made by the demand notices issued for that period. They claimed that the duty demanded under these demand notices for this period was deposited by them under protest and should be refunded to them with interest.

2.8 On preliminary scrutiny, certain defects/ discrepancies were found in the refund claim. These were communicated to the appellant on 18.06.2025 and appellant was asked to further comply and resubmit. Appellant after complying in respect of discrepancies pointed, resubmitted the refund claim along with the relevant documents on 27.06.2025.

2.9 The refund claim was adjudicated vide Order-in-Original No.01/Refund/C. Ex./Kanpur/Edible/AC/Div-KD/2025 dated 18/09/2025 by holding as follows:-

“ORDER

I hereby sanction the refund of Rs.50,68,708/- (Rupees Fifty Lakhs Sixty Eight Thousand Seven Hundred Eight only) to the claimant i.e. M/s. Kanpur Edibles Pvt. Ltd, Rania, Kanpur Dehat under the provisions of Section 11B of the Central Excise Act, 1944. I reject the claim of interest on Excise duty deposited under protest, as discussed above.”

2.10 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been dismissed as per the impugned order.

2.11 Aggrieved appellant have filed this appeal.

3.1 I have heard Shri Amit Awasthi learned Counsel appearing for the appellant and Shri Santosh Kumar learned Authorized Representative appearing for the revenue.

3.2 Arguing for the appellant learned Counsel submits that-

> Appellants are before this Hon’ble Bench, on the issue which is premised to the claim of interest, on account of the amount paid as Revenue Deposit, admittedly under protest and coercion by the Department, without shift of any incidence to the buyer of the product and the issue boiling down to an issue premised to the right of Restitution of original money, the principal amount already refunded and the current issue premises on the claim and rate to the interest, to the principal amount, which the Appellants lost and it is further submitted that the claim of interest, the stand alone issue involved in the present Appeal, adopts the mode of compensation / unjust impoverishment to the loss and evidently when there is no application of statutory bar to any mode of ascertainment of duty, indeed the law metamorphosis from the date, taking into account such nongratuitous act of forcing deposit and indeed payment of interest has to be done by the Department, as one among other limbs, attached to ostensible responsibility and implied legal obligation as carved out, under Section 72 of the Indian Contract Act 1872 read with Article 265 of the Constitution of India.

> Article 265 of the Constitution, envisages that no duty or tax can be levied but without sanction and authority of law and thereby there was no authority for the Department to make over the mode of recovery through Revenue Deposit and ultimate result to the quasi judicial was ended with the SCN, impugned, inevitably to quashing of the proceedings.

> Section 72 of the Indian Contract Act, 1872 is reproduced below:

“72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.-

A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.”

> CBEC Circular No. 984/08/2014-CX dated 16.09.2014, provide in case of such type of Revenue Deposit, with the rider that 6% of interest, has to be paid only on account of delay in sanction of refund, wherein the Appellants case stands to be on altogether different grounds, wherein such Revenue Deposit never adopted the form and shape of any duty of excise and unauthorized withholding of amount, when there was no sanction to the levy nor any delegation of powers, the retention itself, causing loss to the Appellants, towards the amount of interest was indeed unconstitutional and abuse of the due process of law.

> Hon’ble Supreme Court of India in the case of Salonah Tea Co. [1988(33) ELT 249 (SC)] observed as follows:

“Refund of tax collected without the authority of law Illegal assessment State liable to refund such amount Section 9 of Assam Taxation (on Goods carried by Road or Inland Waterways) Act, 1954.

Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from а citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of law. In this case indisputably it appears that tax was collected without the authority of law. Indeed the Appellant had to pay the tax in view of the notices which were without jurisdiction. In the premises it is manifest that the Respondent had no authority to retain the money collected without the authority of law and as such was liable to refund.”

> Appellant, elaborates the timeline, to highlight the originally filed refund claim, adoption of imbecile approach to the refund by the Department and re-filing and all these timeline, which are detailed herein below, would eventuallym get subsumed with the original claim of interest, which would see the genesis from the date of deposit in terms of reading of the Indian Contract Act 1872 and this timeline is discussed above, is detailed as below:

(i) That the Appellants filed the original Refund Application on 22.05.2024 before the Assistant Commissioner, CGST & Central Excise, Div. Kanpur Dehat for an amount of Rs.19,87,934/-for the period January 2014 to July, 2014.

(ii) The Department raised query on 08.08.2024 on the following points:

a) The invoices issued by you in r/o the said refund claim are not attached with the application.

b) The required documents in r/o principal of unjust enrichment i.e. a certificate from the Chartered Accountant/Cost Management Accountant supported by the balance sheet of the applicant for the F.Y. in which the duty amount claimed as refund till the preceding F.Y. in which refund is filed, are also not attached with the application to prove that they had not passed on the incidence of such duty to any other person as required as per para 2(d) of Section 11B of Central Excise Act, 1944.

(iii) The Appellants resubmitted the Refund Application, along with the dossier of documents, on 24.09.2024, for which the Learned Department raised the query.

> Appellant rely on the decision in case of Kuil Fireworks Industries [1997(96) ELT (3) (SC)] to submit that the Appellants claim of interest @ 12%, is having a tenor, wherein such kind of deposits never adopted, as a trite, to any confirmation of demand or duty, however, when identical issue,

> The original amount/ principal amount, albeit delayed on account of delay and laches on the part of the Department very lately has been sanctioned on 19.09.2025 in respect of the claim for refund which was originally filed on 12.06.2024

3.3 Learned Authorized Representative reiterates the findings recorded in the orders of the lower authorities.

4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument.

4.2 Impugned order records the findings as follows:

“5.3 I have carefully considered the submissions made by the appellants in their grounds of appeal and contents of order in original. I find that the present appeal is limited to the question of grant of interest on the refund amount treating it as the revenue deposit rather than duty. Besides, it has also been contested that they are eligible for interest @ 12% р.а.

5.4 I observe that the issue in question is that the appellants have paid the duty under protest which the department has considered as duty deposit falling under section 11B of the Central Excise Act, 1944. However, the appellants have contested that the duty deposited by them under protest should have been considered as revenue deposit and hence they were eligible for interest on refund. However, I hold that the appellants have paid duty regularly under protest which shall be treated as a duty deposit (or deposit made under protest) rather than a final revenue deposit. Thus, in summary, duty paid under protest qualifies as a duty deposit (provisional in nature) and not a revenue deposit (final revenue). This allows refund claims to be filed under Section 11B. Thus for the refund of duty falling under section 11B, the payment of interest is governed under section 11BB of the Central Excise Act, 1944. The relevant portion of the same is given as under-

11-BB. Interest on delayed refunds. If any duty ordered to be refunded under sub-section (2) of Section 11-B 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 anmum 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 11-B 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 [National Tax Tribunal] or any court against an order of the Assistant [Principal Commissioner of Central Excise or Commissioner of Central Excise] 6[or Deputy Principal Commissioner of Central Excise or Commissioner of Central Excise]]. under sub-section (2) of Section 11-B, the order passed by the Commissioner (Appeals), Appellate Tribunal [National Tax Tribunal] or, as the case may he, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.]

5.5 Thus, the plain reading of section 11BB of the Act reveals that the interest on refund of duty will be governed under the provisions of section 11BB of the Act which reveals that provision of interest is attracted when the delay in refund is caused by the department exceeding three months from the date of receipt of the refund application. Since the refund has been timely sanctioned hence the provision of interest is not attracted. Thus, the question of rate of interest is irrelevant.

6.0 In view of foregoing, I reject the appeal filed by the appellants and hold the impugned order to be legal and proper. The appeal is accordingly disposed of in above terms.”

4.3 I find that appellant has challenged the impugned order claiming that they should be allowed the interest in respect of the deposit made by them from the date of deposit. In their submissions made at the time of argument and in written submission they have further clarified that they claim to interest needs to be seen by breaking the period in two parts namely:-

> delay in processing the claim as they had originally filed the refund claim on 22.05.2024 and the refund was granted to them beyond the prescribed period of three months i.e. on 18.09.2025, hence they are entitled to interest for the period of delay.

> The entire amount was deposited by them under protest, during the period January 2014 to July 2014. Hence in respect of the amount so deposited the interest should be paid from the date of deposit to the date of grant of refund.

4.4 I find that the issue is squarely covered by the decision of Hon’ble Supreme Court (Constitutional Bench 9 Judges) in the case of Mafatlal Industries [1997 (89) ELT 247 (SC)]. The relevant paragraphs from this judgement are reproduced below:

“15.The validity of the aforesaid provisions (providing a period of limitation for making claims of refund and declaring that no refund claim shall be entertained except under and in accordance with the said provisions) has never been challenged seriously. Though in certain writ petitions now before us, validity of Section 11B (as amended in 1991) is challenged – which challenge is dealt with hereinafter and rejected – the main submission of Sri F.S. Nariman, leading the arguments on behalf of the appellants-petitioners has been that these provisions do not preclude the filing of a suit or the filing of a writ petition claiming refund where the tax has been collected contrary to law by virtue of Article 265 of the Constitution and that the question of passing on the burden of duty is totally irrelevant in the matter of refund. Once the provisions of the Act including the aforesaid provisions, viz., Rule 11 and Section 11B, as they stood from time to time, are taken as valid and effective, they constitute “law” within the meaning of Article 265. It may be remembered that the aforesaid provisions relating to refund have always been accompanied by and are complimentary to the provisions relating to recovery of duties legitimately due under law, but not collected. The recovery provisions also contained and do contain a corresponding period of limitation, i.e., three months or six months, as the case may be. This period of six months can be extended up to a maximum period of five years in cases where non-payment of duty was on a count of fraud, collusion, wilful mis­statement or suppression of fact or contravention of the provisions of the Act and the Rules indulged in with intent to evade payment of duty.

16. Article 265 of the Constitution is declaratory in nature. It says that “no tax shall be levied or collected except by authority of law”. This no doubt means that taxes collected contrary to law have to be refunded. But where a taxing enactment contains provisions providing for and governing the refund of taxes collected without the authority of law, the validity of such provisions, if and when questioned, has to be examined with reference to other provisions of the Constitution. Article 265 does not itself lay down any criteria for testing the validity of a statute. When it speaks of “law”, it no doubt refers to a valid law but the validity of a law has to be determined with reference to other provisions in the Constitution.

17. We must, however, pause here and explain the various situations in which claims for refund may arise. They may arise in more than one situation. One is where a provision of the Act under which tax is levied is struck down as unconstitutional for transgressing the constitutional limitations. This class of cases, we may call, for the sake of convenience, as cases of “unconstitutional levy”. In this class of cases, the claim for refund arises outside the provisions of the Act, for this is not a situation contemplated by the Act.

18. Second situation is where the tax is collected by the authorities under the Act by mis-construction or wrong interpretation of the provisions of the Act, Rules and Notifications or by an erroneous determination of the relevant facts, i.e., an erroneous finding of fact. This class of cases may be called, for the sake of convenience, as illegal levy. In this class of cases, the claim for refund arises under the provisions of the Act. In other words, these are situations contemplated by, and provided for by, the Act and the Rules.

19. The above distinction is not only accepted in all jurisdictions but is also not disputed before us.

20. So far as the first category (unconstitutional levy) is concerned, there is no dispute before us that it is open to the person claiming refund to either file a suit for recovery of the tax collected from him or to file a writ petition under Article 226 of the Constitution for an appropriate direction of refund. The only controversy on this score is whether the manufacturer/payer is entitled to such refund where he has already passed on the burden of the duty to others.

21. With respect to the second category of cases, there is a good amount of controversy. While the Union of India says that such claims of refund should be put forward and determined only under and in accordance with the provisions of the Act and the Rules, the contention of the appellants-petitioners is that even in such cases a suit or writ is maintainable on the ground that the tax has been collected without the authority of law, i.e., contrary to Article 265 of the Constitution. In other words, while according to the Union of India, such claims of refund should be filed within the time prescribed by the Act and the Rules and should and can be dealt with only under the provisions of the Act and the Rules, the appellants-petitioners say that such claims can be made in suits and writ petitions as well and that too without reference to the period of limitation prescribed in Rule 11 or Section 11B, as the case may be.

22. There is as yet a third and an equally important category. It is this : a manufacturer (let us call him “X”) pays duty either without protest or after registering his protest. It may also be a case where he disputes the levy and fights it out up to first Appellate or second Appellate/Revisional level and gives up the fight, being unsuccessful therein. It may also be a case where he approaches the High Court too, remains unsuccessful and gives up the fight. He pays the duty demanded or it is recovered from him, as the case may be. In other words, so far as `X‟ in concerned, the levy of duty becomes final and his claim that the duty is not leviable is finally rejected. But it so happens that sometime later – may be one year, five years, ten years, twenty years or even fifty years – the Supreme Court holds, in the case of some other manufacturer that the levy of that kind is not exigible in law. (We must reiterate – we are not speaking of a case where a provision of the Act where under the duty is struck down as unconstitutional. We are speaking of a case involving interpretation of the provisions of the Act, Rules and Notification.) The question is whether `X‘ can claim refund of the duty paid by him on the ground that he has discovered the mistake of law when the Supreme Court has declared the law in the case of another manufacturer and whether he can say that he will be entitled to file a suit or a writ petition for refund of the duty paid by him within three years of such discovery of mistake? Instances of this nature can be multiplied. It may not be a decision of the Supreme Court that lead `X‘ to discover his mistake; it may be a decision of the High Court. It may also be a case where `X‘ fights up to first appellate or second appellate stage, gives up the fight, pays the tax and then pleads that he has discovered the mistake of law when the High Court has declared the law. The fact is that such claims have been entertained both in writ petitions and suits until now, purporting to follow the law declared in Kanhaiyalal, and are being allowed and decreed, sometimes even with interest. The Union of India says that this can never be. It says, a manufacturer must fight his own battle and only if he succeeds therein, can he claim refund. He cannot take advantage of success of another manufacturer and that no suit or writ is maintainable by him for refund on the ground of alleged discovery of mistake of law on the declaration of law by this Court or a High Court (or a Tribunal or any other authority under the Act) in the case of another person. The Union of India denies that such a person can plead payment of duty under a mistake of law within the meaning of Section 72 of the Contract Act. It also denies that such a writ petition or a suit can be filed within three years of such “discovery of mistake of law”.

23. The Union of India submits that Kanhaiyalal has been wrongly decided. They submit that no suit or a writ petition lies for refund of duty except in the case of “unconstitutional levy” as specified hereinabove and even here, they say, such claim is subject to the proof that burden of the duty has not been passed on to the purchaser. In all other cases, they say, claims of refund can be made, and must be made, only under and in accordance with the provisions of the Act/Rules aforesaid, governing the subject of refund – and in no other manner and in no other forum. It is also suggested that, in any event, since Kanhaiyalal does not deal with the effect of passing on the duty to a third party – it was neither raised nor considered therein – it is no authority for the proposition that the manufacturer/payer can recover the duty paid in any of the above three categories of cases even if he has passed on the burden to others. The petitioners- appellants, on the other hand, support the reasoning of, and the law declared in, Kanhaiyalal and say that it has been the law over the last thirty seven years and has been followed consistently, without a demur, by larger and smaller Benches of this Court and that there are no good or compelling reasons to depart from of over-rule the said decision.

WAS KANHAIYALAL CORRECTLY DECIDED AND IF NOT, IN WHAT RESPECTS ?

67. The first question that has to be answered herein is whether Kanhaiyalal has been rightly decided insofar as it says (1) that where the taxes are paid under a mistake of law, the person paying it is entitled to recover the same from the State on establishing a mistake and that this consequence flows from Section 72 of the Contract Act;

(2) that it is open to an assessee to claim refund of tax paid by him under orders which have become final – or to reopen the orders which have become final in his own case – on the basis of discovery of a mistake of law based upon the decision of a court in the case of another assessee, regardless of the time-lapse involved and regardless of the fact that the relevant enactment does not provide for such refund or reopening; (3) whether equitable considerations have no place in situations where Section 72 of the Contract Act is applicable; and (4) whether the spending away of the taxes collected by the State is not a good defence to a claim for refund of taxes collected contrary to law.

68. Re. : (I) : Hereinbefore, we have referred to the provisions relating to refund obtaining from time to time under the Central Excises and Salt Act. Whether it is Rule 11 (as it stood from time to time) or Section 11B (as it obtained before 1991 or subsequent thereto), they invariably purported to be exhaustive on the question of refund. Rule 11, as in force prior to August 6, 1977, stated that “no duties and charges which have been paid or have been adjusted….shall be refunded unless the claimant makes an application for such refund under his signature and lodges it to the proper officers within three months from the date of such payment or adjustment, as the case may be”. Rule 11, as in force between August 6, 1977 and November 17, 1980 contained sub-rule (4) which expressly declared: “(4) Save as otherwise provided by or under this rule, no claim of refund of any duty shall be entertained”. Section 11B, as in force prior to April, 1991 contained sub-section (4) in identical words. It said : “(4) Save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained”. Sub-section (5) was more specific and emphatic. It said : “Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim.” It started with a non-obstante clause; it took in every kind of refund and every claim for refund and it expressly barred the jurisdiction of courts in respect of such claim. Sub-section (3) of Section 118, as it now stands, is to the same effect – indeed, more comprehensive and all-encompassing. It says, “(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the rules made thereunder or in any law for the time being in force, no refund shall be made except as provided in sub-section”.

The language could not have been more specific and emphatic. The exclusivity of the provision relating to refund is not only express and unambiguous but is in addition to the general bar arising from the fact that the Act creates new rights and liabilities and also provides forums and procedures for ascertaining and adjudicating those rights and liabilities and all other incidental and ancillary matters, as will be pointed out presently. This is a bar upon a bar – an aspect emphasised in Para 14, and has to be respected so long as it stands. The validity of these provisions has never been seriously doubted. Even though in certain writ petitions now before us, validity of the 1991 (Amendment) Act including the amended Section 118 is questioned, no specific reasons have been assigned why a provision of the nature of sub- section (3) of Section 11B (amended) is unconstitutional. Applying the propositions enunciated by a seven-Judge Bench of this Court in Kamala Mills, it must be held that Section 11B [both before and after amendment] is valid and constitutional. In Kamala Mills, this Court upheld the constitutional validity of Section 20 of the Bombay Sales Tax Act (set out hereinbefore) on the ground that the Bombay Act contained adequate provisions for refund, for appeal, revision, rectification of mistake and for condonation of delay in filing appeal/revision. The Court pointed out that had the Bombay Act not provided these remedies and yet barred the resort to civil court, the constitutionality of Section 20 may have been in serious doubt, but since it does provide such remedies, its validity was beyond challenge. To repeat – and it is necessary to do so – so long as Section 11B is constitutionally valid, it has to be followed and given effect to. We can see no reason on which the constitutionality of the said provision – or a similar provision – can be doubted. It must also be remembered that Central Excises and Salt Act is a special enactment creating new and special obligations and rights, which at the same time prescribes the procedure for levy, assessment, collection, refund and all other incidental and ancillary provisions. As pointed out in the Statement of Objects and Reasons appended to the Bill which became the Act, the Act along with the Rules was intended to “form a complete central excise code”. The idea was “to consolidate in a single enactment all the laws relating to central duties of excise”. The Act is a self-contained enactment. It contains provisions for collecting the taxes which are due according to law but have not been collected and also for refunding the taxes which have been collected contrary to law, viz., Sections 11A and 11B and its allied provisions. Both provisions contain a uniform rule of limitation, viz., six months, with an exception in each case. Sections 11 and 11B are complimentary to each other.

To such a situation, Proposition No. 3 enunciated in Kamala Mills becomes applicable, viz., where a statute creates a special right or a liability and also provides the procedure for the determination of the right or liability by the Tribunals constituted in that behalf and provides further that all questions about the said right and liability shall be determined by the Tribunals so constituted, the resort to civil court is not available – except to the limited extent pointed out therein. Central Excise Act specifically provides for refund. It expressly declares that no refund shall be made except in accordance therewith. The Jurisdiction of a civil court is expressly barred – vide sub-section (5) of Section 11B, prior to its amendment in 1991, and sub-section (3) of Section 11B, as amended in 1991. It is relevant to notice that the Act provides for more than one appeal against the orders made under Section 11B/Rule 11. Since 1981, an appeal is provided to this Court also from the orders of the Tribunal. While Tribunal is not a departmental organ, this court is a civil court. In this view of the matter and the express and additional bar and exclusivity contained in Rule 11/Section 11B, at all points of time, it must be held that any and every ground including the violation of the principles of natural justice and infraction of fundamental principles of judicial procedure can be urged in these appeals, obviating the necessity of a suit or a writ petition in matters relating to refund. Once the constitutionality of the provisions of the Act including the provisions relating to refund is beyond question, they constitute “law” within the meaning of Article 265 of the Constitution. lt follows that any action taken under and in accordance with the said provisions would be an action taken under the “authority of law”, within the meaning of Article 265.

In the face of the express provision which expressly declares that no claim for refund of any duty shall be entertained except in accordance with the said provision, it is not permissible to resort to Section 72 of the Contract Act to do precisely that which is expressly prohibited by the said provisions. In other words, it is not permissible to claim refund by invoking Section 72 as a separate and independent remedy when such a course is expressly barred by the provisions in the Act, viz., Rule 11 and Section 118. For this reason, a suit for refund would also not lie. Taking any other view would amount to nullifying the provisions in Rule 11/Section 118, which, it needs no emphasis, cannot be done. It, therefore, follows that any and every claim for refund of excise duty can be made only under and in accordance with Rule 11 or Section 118, as the case may be, in the forums provided by the Act. No suit can be filed for refund of duty invoking Section 72 of the Contract Act. So far as the jurisdiction of the High Court under Article 226 – or for that matter, the jurisdiction of this court under Article 32 – is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.

69. There is, however, one exception to the above proposition, i.e., where a provision of the Act where under the duty has been levied is found to be unconstitutional for violation of any of the constitutional limitations. This is a situation not contemplated by the Act. The Act does not contemplate any of its provisions being declared unconstitutional and therefore it does not provide for its consequences. Rule 11/Section 11B are premised upon the supposition that the provisions of the Act are good and valid. But where any provision under which duty is levied is found to be unconstitutional, Article 265 steps in. In other words, the person who paid the tax is entitled to claim refund and such a claim cannot be governed by the provisions in Rule 11/Section 11B. The very collection and/or retention of tax without the authority of law entitles the person, from whom it is collected, to claim its refund. A corresponding obligation upon the State to refund it can also be said to flow from it. This can be called the right to refund arising under and by virtue of the Constitutional provisions, viz., Article 265. But, it does not follow from this that refund follows automatically. Article 265 cannot be read in isolation. It must be read in the light of the concepts of economic and social justice envisaged in the Preamble and the guiding principles of State Policy adumbrated in Articles 38 and 39 – an aspect dealt with at some length at a later stage. The very concept of economic justice means and demands that unless the claimant (for refund) establishes that he has not passed on the burden of the duty/tax to others, he has no just claim for refund. It would be a parody of economic justice to refund the duty to a claimant who has already collected the said amount from his buyers. The refund should really be made to the persons who have actually borne its burden – that would be economic justice. Conferring an unwarranted and unmerited monetary benefit upon an individual is the very anti-thesis of the concept of economic justice and the principles underlying Articles 38 and 39. Now, the right to refund arising as a result of declaration of unconstitutionality of a provision of the enactment can also be looked at as a statutory right of restitution. It can be said in such a case that the tax paid has been paid under a mistake of law which mistake of law was discovered by the manufacturer/assessee on the declaration of invalidity of the provision by the court. Section 72 of the Contract Act may be attracted to such a case and a claim for refund of tax on this score can be maintained with reference to Section 72. This too, however, does not mean that the taxes paid under an unconstitutional provision of law are automatically refundable under Section 72. Section 72 contains a rule of equity and once it is a rule of equity, it necessarily follows that equitable considerations are relevant in applying the said rule – an aspect which we shall deal with a little later. Thus, whether the right to refund of taxes paid under an unconstitutional provision of law is treated as a constitutional right flowing from Article 265 or as a statutory right/equitable right affirmed by Section 72 of the Contract Act, the result is the same – there is no automatic or unconditional right to refund.

70. Re : (II) : We may now consider a situation where a manufacturer pays a duty unquestioningly – or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasise that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of mis-construction, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17(1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well-accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law.

So long as that order stands, the duty cannot be recovered back nor can any claim for its refund be entertained. But what is happening now is that the duty which has been paid under a proceeding which has become final long ago – may be an year back, ten years back or even twenty or more years back – is sought to be recovered on the ground of alleged discovery of mistake of law on the basis of a decision of a High Court or the Supreme Court. It is necessary to point out in this behalf that for filing an appeal or for adopting a remedy provided by the Act, the limitation generally prescribed is about three months (little more or less does not matter). But according to the present practice, writs and suits are being filed after lapse of a long number of years and the rule of limitation applicable in that behalf is said to be three years from the date of discovery of mistake of law : The incongruity of the situation needs no emphasis. And all this because another manufacturer or assessee has obtained a decision favourable to him. What has indeed been happening all these years is that just because one or a few of the assessees succeed in having their interpretation or contention accepted by a High Court or the Supreme Court, all the manufacturers/Assessees all over the country are filing refund claims within three years of such decision, irrespective of the fact that they may have paid the duty, say thirty years back, under similar provisions – and their claims are being allowed by courts. All this is said to be flowing from Article 265 which basis, as we have explained hereinbefore, is totally unsustainable for the reason that the Central Excise Act and the Rules made thereunder including Section 11B/Rule 11 too constitute “law” within the meaning of Article 265 and that in the face of the said provisions – which are exclusive in their nature – no claim for refund is maintainable except under and in accordance therewith. The second basic concept of law which is violated by permitting the above situation is the sanctity of the provisions of the Central Excises and Salt Act itself. The Act provides for levy, assessment, recovery, refund, appeals and all incidental/ancillary matters. Rule 11 and Section 11B, in particular, provide for refund of taxes which have been collected contrary to law, i.e., on account of a mis-interpretation or mis-construction of a provision of law, rule, notification or regulation. The Act provides for both the situations represented by Sections 11A and 11B. As held by a seven – Judge Bench in Kamala Mills, following the principles enunciated in Firm & Illuri Subbaiya Chetty, the words “any assessment made under this Act” are wide enough to cover all assessments made by the appropriate authorities under the Act whether the assessments are correct or not and that the words “an assessment made” cannot mean an assessment properly and correctly made. It was also pointed out in the said decision that the provisions of the Bombay Sales Tax Act clearly indicate that all questions pertaining to the liability of the dealer to pay assessment in respect of their transactions are expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. Whether or not a return is correct and whether a transaction is exigible to tax or not are all matters to be determined by the authorities under the Act. The argument that the finding of the authority that a particular transaction is taxable under the Act is a finding on a collateral fact and, therefore, resort to civil court is open, was expressly rejected and it was affirmed that the whole activity of assessment beginning with the filing of the return and ending with the order of assessment falls within the jurisdiction of the authorities under the Act and no part of it can be said to constitute a collateral activity not specifically or expressly included in the jurisdiction of the authorities under the Act. It was clarified that even if the authority under the Act holds erroneously, while exercising its jurisdiction and powers under the Act that a transaction is taxable, it cannot be said that the decision of the authority is without jurisdiction. We respectfully agree with the above propositions and hold that the said principles apply with equal force in the case of both the Central Excises and Salt Act and the Customs Act. Once this is so, it is un-understandable how an assessment/adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person’s case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. We must reiterate that the provisions of the Central Excise Act also constitute “law” within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under “the authority of law” within the meaning of the said article.

In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. It is, however, suggested that this result follows only in tax matters because of Article 265. The explanation offered is untenable as demonstrated hereinbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiyalal and other decisions following it. Every decision of this Court and of the High Courts on a question of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee’s case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee’s case, a similar point is decided in favour of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, CJ. in Tilokchand Motichand extracted in Para 37). The decisions of this Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith.

71. Re. : (III) : For the purpose of this discussion, we take the situation arising from the declaration of invalidity of a provision of the Act under which duty has been paid or collected, as the basis, inasmuch as that is the only situation surviving in view of our holding on (I) and (II). In such cases, the claim for refund is maintainable by virtue of the declaration contained in Article 265 as also under Section 72 of the Contract Act as explained hereinbefore, subject to one exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person‟s case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. In such cases, the plaintiff may also invoke Section 17(1)(c) of the Limitation Act for the purpose of determining the period of limitation for filing a suit. It may also be permissible to adopt a similar rule of limitation in the case of writ petitions seeking refund in such cases. But whether the right to refund or restitution, as it is called, is treated as a constitutional right flowing from Article 265 or a statutory right arising from Section 72 of the Contract Act, it is neither automatic nor unconditional. The position arising under Article 265 is dealt with later in Paras 75 to 77. Here we shall deal with the position under Section 72. Section 72 is a rule of equity. This is not disputed by Sri F.S. Nariman or any of the other counsel appearing for the appellants-petitioners. Once it is a rule of equity, it is un-understandable how can it be said that equitable considerations have no place where a claim is made under the said provision. What those equitable considerations should be is not a matter of law. That depends upon the facts of each case. But to say that equitable considerations have no place where a claim is founded upon Section 72 is, in our respectful opinion, a contradiction in terms. Indeed, in Kanhaiyalal, the Court accepts that the right to recover the taxes – or the obligation of the State to refund such taxes – under Section 72 of the Contract Act is subject to “questions of estoppel, waiver, limitation or the like”, but at the same time, the decision holds that equitable considerations cannot be imported because of the clear and unambiguous language of Section 72. With great respect, we think that a certain amount of inconsistency is involved in the aforesaid two propositions. “Estoppel, waiver….or the like”, though rules of evidence, are yet based upon rules of equity and good conscience. So is Section 72. We are, therefore, of the opinion that equitable considerations cannot be held to be irrelevant where a claim for refund is made under Section 72. Now, one of the equitable considerations may be the fact that the person claiming the refund has passed on the burden of duty to another. In other words, the person claiming the refund has not really suffered any prejudice or loss. If so, there is no question of reimbursing him. He cannot be recompensated for what he has not lost. The loser, if any, is the person who has really borne the burden of duty; the manufacturer who is the claimant has certainly net borne the duty notwithstanding the fact that it is he who has paid the duty.

Where such a claim is made, it would be wholly permissible for the court to call upon the petitioner/plaintiff to establish that he has not passed on the burden of duty to a third party and to deny the relief of refund if he is not able to establish the same, as has been done by this Court in I.T C. In this connection, it is necessary to remember that whether the burden of the duty has been passed on to a third party is a matter within the exclusive knowledge of the manufacturer. He has the relevant evidence – best evidence – in his possession. Nobody else can be reasonably called upon to prove that fact. Since the manufacturer is claiming the refund and also because the fact of passing on the burden of duty is within his special and exclusive knowledge, it is for him to allege and establish that he has not passed on the duty to a third party. This is the requirement which flows from the fact that Section 72 is an equitable provision and that it incorporates a rule of equity. This requirement flows not only because Section 72 incorporates a rule of equity but also because both the Central Excise duties and the Customs duties are indirect taxes which are supposed to be and are permitted to be passed on to the buyer. That these duties are indirect taxes, meant to be passed on, is statutorily recognised by Section 64A of the Sale of Goods Act, 1930 [which was introduced by Indian Sale of Goods (Amendment) Act, 1940 and substituted later by Act 33 of 1963]. As originally introduced, Section 64A read :

“64A. In the event of any duty of customs or excise on any goods being imposed, increased, decreased or remitted after the making of any contract for the sale of such goods without stipulation as to the payment of duty where duty was not chargeable at the time of the making of the contract, or for the sale of such goods duty-paid where duty was chargeable at that time –

(a) if such imposition or increase so takes effect that the duty or increased duty, as the case may be, or any part thereof, is paid, the seller may add so much to the contract price as will be equivalent to the amount paid in respect of such duty or increase of duty, and he shall be entitled to be paid and to sue for and recover such addition; and

(b) if such decrease or remission so takes effect that the decreased duty only or no duty, as the case may be, is paid, the buyer may deduct so much from the contract price as will be equivalent to the decrease of duty or remitted duty, and he shall not be liable to pay, or be sued for or in respect of, such deduction.”

72.

73.

74.

75.

76.

77. That “the material resources of the community” are not confined to public resources but include all resources, natural and man-made, public and private owned” is repeatedly affirmed by this Court. [See Ranganatha Reddy, Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal [1983 (1) S.C.R. 1000] and State of Tamil Nadu etc. etc. v. L. Abu Kavur Bai & Ors. etc. [1984 (1) S.C.R. 725]. We are of the considered opinion that Sri Parasaran is right in saying that the philosophy and the core values of our Constitution must be kept in mind while understanding and applying the provisions of Article 265 of the Constitution of India and Section 72 of the Contract Act (containing as it does an equitable principle) – for that matter, in construing any other provision of the Constitution and the laws. Accordingly, we hold that even looked at from the constitutional angle, the right to refund of tax paid under an unconstitutional provision of law is not an absolute or an unconditional right. Similar is the position even if Article 265 can be invoked – we have held, it cannot be – for claiming refund of taxes collected by misinterpretation or misapplication of a provision of law, rules, notifications or regulation.

83. It is then pointed out by the learned Counsel for the petitioners-appellants that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression “relevant date” has been defined n Clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under Clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that Clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that “the limitation of six months shall not apply where any duty has been paid under protest”. Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub­section (1) of Section 11B along with the definition of “relevant date”, there is no room for any apprehension of the kind expressed by the learned Counsel.

84.It was then submitted that Rule 233B which prescribes the procedure to be followed in cases where duty is paid under protest requires the assessee to state the grounds for payment of duty under protest and that it may well happen that the authority to whom the letter of protest is submitted may refuse to record it, if he is not satisfied with the grounds of protest. In our opinion, the said apprehension is not well-founded. Sub-rules (1), (2) and (3) of Rule 233B read as follows :

“RULE 233B. Procedure to be followed in cases where duty is paid under protest. – Where an assessee desires to pay (1) duty under protest he shall deliver to the proper officer a letter to this effect and give grounds for payment of the duty under protest.

On receipt (2) of the said letter, the proper officer shall give an acknowledgement to it.

The (3) acknowledgement so given shall, subject to the provisions of the sub-rule (4), be the proof that the assessee has paid the duty under protest from the day on which the letter of protest was delivered to the proper officer.”

85.The rule no doubt requires the assessee to mention the “grounds for payment of the duty under protest” but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him – and that acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him.

86.We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B.”

99.The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.

(i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff – whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter – by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 – and of this Court under Article 32 – cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.

The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute “law” within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder . Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal – which is not a departmental organ – but to this Court, which is a civil court.

(vi) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes Central Excises duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he has himself borne the burden of the said duty.

(vii) Section 72 of the Contract Act is basedupon and incorporates a rule of equity. In such a situation, equitable considerations cannot be ruled out while applying the said provision.

(viii) The decision of this Court in Sales Tax Officer, Benaras v. Kanhaiyalal Mukundlal Saraf [1959 S.C.R. 1350] must be held to have been wrongly decided insofar as it lays down or is understood to have laid down propositions contrary to the propositions enunciated in (i) to (vii) above. It must equally be held that the subsequent decisions of this Court following and applying the said propositions in Kanhaiyalal have also been wrongly decided to the above extent. This declaration – or the law laid down in propositions (i) to (vii) above – shall not however entitle the State to recover the taxes/duties already refunded and in respect whereof no proceedings are pending before any Authority/Tribunal or Court as on this date. All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of an Authority, Tribunal or Court or otherwise.

4.5 Appellant have sought to emphasize relying on certain decisions that the amount deposited by them cannot be construed as duty and should be considered as deposit for the purpose of the determining their claim to interest. The principles contained in the above decision of the Hon’ble Apex Court have been explained by Hon’ble Kerala High Court in case of Southern Surface Finishers [2019 (28) G.S.T.L. 202 (Ker.)] stating as follows:

“8. B.L. Hansaria, J. concurred with K.S. Paripoornan, J., Suhas C. Sen, J. wrote a dissenting judgment, holding the amended provisions to be a mere device and a cloak to confiscate the property of the taxpayer; but concurred with K.S. Paripoornan, J. on the question of an action by way of suit or writ petition being maintainable. Ahmadi C.J., though concurring with B.P. Jeevan Reddy, J. expressed a different view on two aspects. In cases of the levy being held to be unconstitutional or void for lack of inherent jurisdiction, the claim of refund as tax paid under mistake of law, was held to be outside the ambit of the Excise Act and the limitation applicable was held to be that specified under Section 17(1)(c) of the Limitation Act. The other aspect on which dissent is expressed, was with respect to an assessee‘s challenge to the constitutionality having failed and later, the view being reversed. In such cases Ahmadi, C.J., was of the opinion that the assessee‘s remedy cannot be held to be foreclosed and he should be left to legal remedies of review etc. of the earlier order.

9. The Learned Single Judge who referred the matter, rightly noticed the different views expressed, which however on the question of mistake of law and the manner in which refund has to be applied for; we have to concede to the majority view of five Learned Judges. From the above extracts, it has to be noticed that Justice B.P. Jeevan Reddy in his majority judgment; concurred to by a majority of five out of nine, held the refund to be possible only under the provisions of the Act. We need only refer to the category of payment under a mistake of law. We do not agree with the Learned Single Judge that the facts of the case discussed in WP (C) No. 18126/2015 do not fall under any of the categories. A payment made on a mistaken understanding of law finding the levy to be exigible for the services rendered, would be a levy made or paid under mistake of law and not one categorized as an unconstitutional levy or illegal levy. We cannot agree with the elastic interpretation made by the Learned Single Judge that the case would be one on account of mistake of fact in understanding the law. The mistake committed by the assessee may be one on law or on facts; the remedy would be only under the statute. Here we are not concerned with a case as specifically noticed in Mafatlal Industries Limited (supra) of an assessee trying to take advantage of a verdict in another case. Here the assessee had paid the tax without demur and later realised that actually there was no levy under the provisions of the statute. However, that again is a mistake of law as understood by the assessee and for refund, the assessee has to avail the remedy under the provisions of the statute and concede to the limitation provided therein.

10. B.P. Jeevan Reddy, J. after elaborate discussion, finds the Excise Act to be a self contained enactment with provisions for collecting taxes which are due according to law and also for refunding the taxes collected contrary to law, which has to be under Sections 11A and 11B. Both provisions were found to contain a uniform rule of limitation, namely six months at that time and then one year and now two years. Relying on the decision in AIR 1965 SC 1942 [Kamala Mills Ltd. v. State of Bombay], it was held that where a statute creates “a special right or a liability and also provides the procedure for the determination of the right or liability, by the Tribunals constituted in that behalf and provides further that all questions above the said right and liability shall be determined by the Tribunal so constituted, the resort to Civil Court is not available, except to the limited extent pointed out in Kamala Mills Ltd. (supra). Central Excise Act having provided specifically for refund, which provision also expressly declared that no refund shall be made except in accordance therewith, the jurisdiction of the Civil Court was found to be expressly barred. It was held that once the constitutionality of the provisions of the Act, including the provisions relating to refund is beyond question, then any and every ground, including violation of principles of natural justice and infraction of fundamental principles of judicial procedure has to be urged under the provisions in the Act, obviating the necessity of a suit or a writ petition in matters relating to a refund. The only exception provided was when there was a declaration of unconstitutionality of the provisions of the Act, in which event, a refund claimed could be otherwise than under Section 11B. We, specifically, emphasise the underlined portion in paragraph 79 of the cited decision as extracted hereinabove. The earlier view that the limitation was three years from the date of discovery of mistake of law was specifically differed from, since the refund had to be under the remedy as provided in the statute, which prescribed a limitation.

11. At the risk of repetition, here, the assessees paid up the tax and later realised that they are entitled to exemption. Going by the majority judgment, in Mafatlal Industries Limited (supra), we have to find such cases being subjected to the rigour of limitation as provided under Section 11B. The limitation, in the relevant period, being one year, there could be no refund application maintained after that period. We, hence, find the order impugned in the writ petitions to be proper and we dismiss the writ petitions. We hold that the judgment dated 6-7- 2015 in WP (C) No. 18126/2015 [2015 (39) S.T.R. 706 (Ker.)] [M/s. Geojit BNP Paribas Financial Services Ltd. v. Commissioner of Central Excise] is not good law, going by the binding precedent in Mafatlal Industries Limited (supra).”

4.6 In case of M.G.M. International Exports Ltd. [2022 (61) G.S.T.L. 565 (Mad.)] Hon’ble Madras High Court held as follows:

21. Thus, collection of tax by IMC Ltd. was not only contrary to the provisions of the Finance Act, 1994 but also the appropriation of such amount by the service tax department contrary to Article 265 of the Constitution of India. However, payment of tax by IMC Ltd. and appropriation and collection by service tax department at best was on account of misconstruction of the provisions of the Finance Act, 1994 as it stood and therefore, any refund of such tax paid on borne by any person would be governed by the provisions of the Central Excise Act, 1944 as made applicable to refund under Finance Act, 1994 by virtue of Section 83 of the Finance Act, 1994.

22. Therefore, refund of tax if any borne by the petitioner had to be made only within a period of limitation prescribed under Section 11B of the Central Excise Act, 1944 notwithstanding the fact that the petitioner became aware of the wrong payment of tax only after the Central Board of Excise and Customs issued clarification bearing reference Order No. 2/1/2002-S.T., dated 24-4-2002. Thus, the period prescribed under Section 11B of the Central Excise Act, 1944 had expired long before the above were clarification was issued.

23. The Hon’ble Supreme Court in Commissioner v. Allied Photographic India (P.) Ltd., 2004 (166) E.L.T. 3 (S.C.) considered the case of distributor who had borne the incidence of tax and posed the following question :-

“The point which still remains to be decided is whether the respondent herein was entitled to refund without complying with Section 11B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest?”

24. The Hon‘ble Supreme Court in para 15 has answered the issue as follows :-

15. Mr. Ganesh, Learned Senior Counsel appearing on behalf of the respondent vehemently urged that the issue arising in the present matter is squarely covered by the decision of Division Bench of this Court in the case of National Winder v. Commissioner of Central Excise, Allahabad [2003 (154) E.L.T. 350] in which it has been held that if duty is paid by a manufacturer under protest then limitation of six months will not apply to a claim of refund by a purchaser. For the reasons given hereinabove, we hold that the said judgment is per incuriam. At this stage, it is important to note that the Division Bench judgment [Hon‘ble S.N. Variava and B.P. Singh, JJ.] in the case of National Winder (supra) was delivered on 11-3-2003. However, on 13-11-2003, the Division Bench [Hon‘ble S.N. Variava and H.K. Sema, JJ.], has referred the matter as stated above to the Larger Bench in the light of conflict which the Division Bench noticed between the earlier judgments of this Court on one hand and Paragraph 104 of the judgment of the Constitution Bench of nine-Judges in the case of Mafatlal Industries Ltd. (supra). Hence, by this judgment, we have clarified the position in law.

25. Though the Learned Counsel for the petitioner has cited few decisions of the Andhra Pradesh High Court, Punjab and Haryana High Court and that of the Karnataka High Court, I am afraid that these decisions have either not considered the decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India, 1997 (89) E.L.T. 247 in its proper perspective or have ignored the same altogether. The decision of the Hon’ble Supreme Court in Commissioner v. Allied Photographic India (P) Ltd., 2004 (166) E.L.T. 3 (S.C.) sealed the fate of the refund claim and put the last nail in the coffin and has thereby destroyed all the hopes of the petitioner.

4.7 Hon’ble Kerala High Court has in the case of S.I. Property Kerala Pvt. Ltd. [2019 (29) G.S.T.L. 632 (Ker.)] held as follows:

18. There is no basis for the contention raised by the Learned Counsel for the appellant that the amount was paid by the appellant on account of coercion and threat made by the authorities. There is no material produced in support of this contention.

19. In the instant case, as noticed earlier, when the amount was levied from the appellant, the demand for levy was legal. The amount was paid by the appellant as service tax. The amount paid lost the colour of tax only when the issue was finally decided by the Supreme Court on 19-2-2018 in Bhayana Builders (supra) to the effect that value of materials supplied free of cost by service recipient is not exigible to service tax. Applying the dictum laid down by the Supreme Court in Mafatlal Industries (supra), we hold that the claim for refund of amount made by the appellant comes within the purview of Section 11B(1) of the Act. The first substantial question of law raised is answered against the assessee and in favour of the Revenue.

20. The amount was paid by the appellant on different dates during the period between 27-8-2012 and 6-3-2013. The last date of payment was 6-3-2013. It was on 23-10­2014 the appellant filed an application dated 14-10-2014 in the prescribed form for refund of the amount. The application for refund in the prescribed form was filed beyond the period of one year from the last date of payment of duty.

21. There is a feeble plea raised by the appellant that the tax was paid under protest. The second proviso to Section 11B(1) of the Act states that the limitation of one year shall not apply where the duty is paid under protest. However, there is no material to find that the payment made was under protest. Protest made subsequently in any representation made to the department is not sufficient.

22. Learned Counsel for the appellant has pointed out that the appellant had sent a letter dated 13-9-2013 (Annexure-D) to the department claiming refund of the amount and the claim made therein was within the time prescribed by Section 11B(1) of the Act. It was only a letter and not an application for refund of the amount in the prescribed form. Section 11B(1) of the Act specifically stipulates that an application for refund of duty has to be made in such form and manner as may be prescribed. The letter sent by the appellant to the department cannot be treated as an application for refund of amount as envisaged under Section 11B(1) of the Act.

23. The only question now survives for consideration is whether the appellant can take advantage of the decision of the Supreme Court in Bhayana Builders (supra) to contend that the application for refund of amount filed by him in the prescribed form was within the time stipulated under Section 11B(1) of the Act. As noticed earlier, the issue whether value of the materials supplied by the service recipients free of cost can be included in computing the taxable value of services rendered by the assessee, was decided by the Supreme Court on 19-2-2018 in Bhayana Builders (supra). According to the Learned Counsel for the appellant, in view of the provision contained in Clause (ec) of Explanation (B) to Section 11B of the Act, an assessee is entitled to take advantage of the decision in Bhayana Builders (supra) and file application for refund of duty within one year from the date of that decision.

4.8 In case of Escorts Limited [1998 (97) E.L.T. 211 (S.C.)] Hon’ble Supreme Court held as follows:

7. Now coming to the second submission of Mr. A.K. Ganguli, it must be seen that the application made by the appellant was under Section 27. The authorities under the Act must necessarily operate within the four corners of the Act. They have no option but to reject an application filed beyond six months. Learned Counsel, however, brought to our notice a decision of this Court in Shri Vallabh Glass Works v. Union of India [1984 (16) E.L.T. 171 (S.C.) = 1984 (3) SCR 180]. In the said decision, it has been observed that where duty has been paid under a mistake within the meaning of Section 17(1)(c) of the Limitation Act, 1963, the excess amount paid becomes refundable by virtue of Section 72 of the Indian Contract Act. Firstly, this decision was rendered under the Central Excises and Salt Act and it pertains to the situation obtaining in 1976. Above all, the decision does not refer to any provision of the Central Excise Act prescribing a period of limitation as is done by Section 27 of the Customs Act. We cannot understand the said decision as saying that even where there is a specific provision prescribing a period of limitation, it can be ignored by invoking Section 72 of the Contract Act. In fact, this appears to be the view briefly indicated in Miles India Limited v. Assistant Collector [1987 (30) E.L.T. 641]. We may, in this connection, notice Collector of Central Excise v. Doaba Co-operative Sugar Mills Ltd. [1988 (37) E.L.T. 478 (S.C.) = 1988 Supp. SCC 683]. S. Mukherjee, J. as he then was, speaking for the Bench made the following observation in Para 6 which may be quoted in full, in view of the fact that it puts forward another aspect of the controversy relating to refund :

“It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. Assistant Collector of Customs, [1987 (30) E.L.T. 641 (S.C.) – 1985 ECR 289 (1)], but it was assailed before this Court. The appeal was withdrawn. This Court observed that the customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under provisions of the Customs Act, 1962. If really the payment of duty was made under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. Assistant Collector of Customs.”

8. According to the principle of this decision as well, the appellant‟s application must be held to have been rightly dismissed.

4.9 In the case of Veer Overseas [2018 (15) G.S.T.L. 59 (Tri. – LB)] Larger Bench of Tribunal has held as follows:

6. We have examined the decision of the Tribunal in Monnet International Ltd. (supra). The said decision relied on certain case laws regarding applicability of limitation of three years and non-applicability of Section 11B in certain situations. Further, we note that in the said case there was no tax liability at all as the services were not subjected to tax. In the present case, the services were liable to tax and by way of an exemption notification services in respect of certain commodities were exempted. One more important aspect to be considered is that the amount paid by the appellant has been deposited under a proper service tax head of account by a payment challan. The said amount has been appropriated by the Government as service tax. Later, the appellant realized that the services were exempt by a notification. The amount already paid was in the form of a tax through the jurisdictional authorities and the same has been accounted and appropriated by the Government as a tax. Section 11B of the Central Excise Act, 1944 made applicable to service tax refund clearly stipulates that any person claiming refund of any duty of excise to make an application for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence as the applicant may furnish to establish that the amount of duty of excise in relation to which said refund is claimed was collected from or paid by him and the incidences of such duty had not been passed on by him to any other person.

7. What is crucial is that the appellants paid the claimed amount as service tax. They have approached the jurisdictional authority of service tax for refund of the said money. It is clear that the jurisdictional service tax authority is governed by the provisions of Section 11B as the claim has been filed as per the said mandate only. Here, we have specifically asked the Learned Counsel for the appellant under what provision of law he is seeking the return of the money earlier paid. He admitted that the claim has been preferred in terms of the provisions of Section 11B. If that being the case, it cannot be said that except for limitation other provisions of Section 11B will be made applicable to the appellant. The Learned Counsel also did not advance such proposition. He repeatedly submitted that the amount is paid mistakenly. The same is not a tax and should be returned without limitation as mentioned in Section 11B. We are not convinced by such submission.

8. Here it is relevant to note that in various cases the High Courts and the Apex Court have allowed the claim of the parties for refund of money without applying the provisions of limitation under Section 11B by holding that the amount collected has no sanctity of law as the same is not a duty or a tax and accordingly the same should be returned to the party. We note such remedies provided by the High Courts and Apex Court are mainly by exercising powers under the Constitution, in writ jurisdiction. It is clear that neither the jurisdictional service tax authority nor the Tribunal has such constitutional powers for allowing refund beyond the statutory time-limit prescribed by the law. Admittedly, the amount is paid as a tax, the refund has been claimed from the jurisdictional tax authorities and necessarily such tax authorities are bound by the law governing the collection as well as refund of any tax. There is no legal mandate to direct the tax authority to act beyond the statutory powers binding on them. The Hon‘ble Supreme Court in Mafatlal Industries Ltd. (supra) categorically held that no claim for refund of any duty shall be entertained except in accordance with the provisions of the statute. Every claim for refund of excise duty can be made only under and in accordance with Section 11B in the forms provided by the Act. The Apex Court further observed that the only exception is where the provision of the Act where under the duty has been levied is found to be unconstitutional for violation of any of the constitutional limitations. This is a situation not contemplated by the Act. We note in the present case there is no such situation of the provision of any tax levy, in so far as the present dispute is concerned, held to be unconstitutional. As already held that the appellant is liable to pay service tax on reverse charge basis but for the exemption which was not availed by them. We hold that the decision of the Tribunal in Monnet International Ltd. (supra) has no application to decide the dispute in the present referred case. We take note of the decision of the Tribunal in XL Telecom Ltd. (supra). It had examined the legal implication with reference to the limitation applicable under Section 11B. We also note that the said ratio has been consistently followed by the Tribunal in various decisions. In fact, one such decision reached Hon‘ble Supreme Court in Miles India Limited v. Assistant Collector of Customs – 1987 (30) E.L.T. 641 (S.C.). The Apex Court upheld the decision of the Tribunal to the effect that the jurisdictional customs authorities are right in disallowing the refund claim in terms of limitation provided under Section 27(1) of the Customs Act, 1962. We also note that in Assistant Collector of Customs v. Anam Electrical Manufacturing Co. – 1997 (90) E.L.T. 260 (S.C.) referred to in the decision of the Tribunal in XL Telecom Ltd. (supra), the Hon‘ble Supreme Court held that the claim filed beyond the statutory time limit cannot be entertained.

9. The Apex Court in Mafatlal Industries Ltd. (supra) observed that the Central Excise Act and the Rules made thereunder including Section 11B too constitute “law” within the meaning of Article 265 and that in the face of the said provisions – which are exclusive in their nature no claim for refund is maintainable except and in accordance therewith. The Apex Court emphasized that “the provisions of the Central Excise Act also constitute “law” within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under “the authority of law” within the meaning of the said Article”.

10. Having examined various decided cases and the submissions of both the sides, we are of the considered view that a claim for refund of service tax is governed by the provision of Section 11B for period of limitation. The statutory time limit cannot be extended by any authority, held by the Apex Court.

4.10 In case of Enmas Andritz Pvt. Ltd. [2017 (6) G.S.T.L. 12 (Mad.)], Hon’ble Madras High Court held as follows:

“8. Mr. N. Viswanathan, who appears on behalf of the appellant/assessee says the order of the Tribunal is erroneous, inasmuch as, it is observed in the impugned judgment, that the levy though “without the authority of law” was not unconstitutional.

8.1 Learned counsel says that since the tax was paid and collected, under mistake of law, the very collection, being contrary to the provisions of Article 265 of the Constitution, will make it unconstitutional and therefore, on that short ground alone, the impugned judgment, ought to be reversed.

9. While we are in agreement with the learned counsel for the appellant/assessee that the observation of the Tribunal, that the levy should be construed as one “without authority of law” as against being “unconstitutional”, is erroneous, we are unable to disagree with the Tribunal, that perhaps, the remedy for claiming refund, lay, in the appellant/assessee filing an action by way of a suit or writ petition.

10. This was, in our opinion, at best, a case where the tax authorities had acted beyond their jurisdiction. The tax authority, being creature of statute, had no jurisdiction to collect tax from the recipient of service, prior to the date of amendment of the statute, which, admittedly, was brought about on 18-4-2006.

10.1 As indicated above, on that date, Section 66A was inserted in Finance Act, 1994.

11. Having said so, clearly, the appellant/assessee could only have either instituted a suit, albeit, within the period of limitation or, filed a writ petition to ventilate its grievance.

11.1 Concededly, the appellant/assessee, did neither and, instead, filed application under Section 11B of the Central Excise Act, 1944.

12. Thus, in our view, ultimately, the Tribunal came to the correct conclusion and therefore, no interference, is called for.

13. In view of our discussion above, Question No. (i) is answered in favour of the Revenue, for its conclusion, subject to caveat set forth above with regard to its observation that the levy could be construed without authority of law but not unconstitutional.

13.1 In so far as, Question No. (ii) is concerned, it is answered against the assessee and in favour of the Revenue.

13.2 As regards, Question No. (iii), in which, there is a reference to the judgment of the Gujarat High Court in the matter of Binani Cement v. Union of India reported in 2013 (288) E.L.T. 193 (Guj.) – that judgment, in our opinion, would have no application to the instant case, as in that matter, the Gujarat High Court was dealing with a writ petition. Clearly, the Tribunal, in the instant case, was exercising powers, as a creature of the statute and therefore, could not have granted any relief to the appellant/assessee, having regard to the nature of its jurisdiction. Therefore, Question No. (iii), will also have to be answered against the assessee and in favour of the Revenue.

14. Therefore, while we are of the opinion that no relief can be granted to the appellant/assessee, in view of the jurisdiction that we are presently invested with, it will be open to the appellant/assessee, to take recourse to any other remedy, that may be available to it in law, to seek relief.

15. We are sure, the concerned Court will take a view in the matter, after hearing both sides and after having regard to the position in law, as regards the relief claimed by the assessee.”

4.11 Hon’ble Madras High Court has in the case of Nataraj And Venkat Associates [2015 (40) S.T.R. 31 (Mad.)] held as follows:

From the materials available on record, it is seen that the amounts were credited to the Revenue under the Head of Account “0044-Service Tax” through TR-6 challans, which are purported for payment of Service Tax only and as such, the claim of the respondent that the payment was only deposit and not Service Tax, cannot be sustained. Further, a tax, be it, direct or indirect, is intended for immediate expenditure for the common good of the state and it would be unjust to require its repayment after it has been in whole or in part expended, which would often be the case in most payment of such sort. Therefore, it is impracticable for the authorities to refund applications that are filed beyond time even it is paid under a mistake of law. Therefore, the authorities have rightly rejected the claim of the respondent and this aspect has not been taken note of by the learned single Judge.

4.12 In case of Kirloskar Electric Company [(2024) 20 Centax 613 (Tri.-Bom)] Bombay Bench has held as follows:

“5.1 Doubt may arise at this point as to what kind of order would make the appellant entitled to claim a refund? Admittedly, in the instant case there is no direction for payment of refund except a finding that the said amount of Rs. 7,65,445/-, as a component of tax under Reverse Charge Mechanism, was not payable. Learned Commissioner (Appeals) in the first round of litigation in his order dated 31-10-2012 had formulated the issue at para 9 of his order, the first para of which is required to be produced here for a better clarity.

Whether service tax is payable by the recipient (importer) of ‘Scientific and Technical Consultancy Service’ on reciept of such service from abroad during the period November 2005 to July 2006. Then he noted his findings at para 12 the relevant portion of which reads:

“In view of the above mentioned settled legal position it is clear that no service tax is leviable in respect of Scientific and Technical Consultancy Services received from abroad by the appellant prior to 18-4-2006”

and accordingly, he confirmed payment that was effected between 18-4-2006 and July 2006 as duly paid service tax under Reverse Charge Mechanism. Explanation of relevant date at 11B (ec) clearly indicates that if duty becomes refundable ‘as a consequence of order/judgment’, then the period of one year is to be calculated from the date of the order/judgment. Therefore, without prejudice to the submissions made for and against the issue, it can invariably lead a rational human being to a conclusion that there is no requirement of an express direction for refund of service tax paid that was not payable if as a consequence of judgment or decree such duty becomes refundable. The stipulation contained in Mafatlal Industries Ltd. judgment [1997 (89) E.L.T. 247 (S.C.)] that if duty is declared as illegal, unconstitutional in respect of any other person say in respect of ‘Y’ then ‘X’ cannot claim after passes of long years though he had fought a legal battle up to a certain stage and subsequently abandoned it (para-22 of the Mafatlal Industries Ltd. judgment). However, in the instant case it is in respect of appellant itself the said order that duties was not leviable has been passed that arose as a consequence against demand of interest on the said component of duty that was paid by the appellant, may be under mistake of fact. Hence the order:

THE ORDER

The appeal is allowed and the order passed by the learned Commissioner (Appeals) in Order-in-Appeal No. PUN-SVTAX-000-APP-0064-15-16 dated 9-7-2015 is hereby set aside. Appellant is entitled to get refund of Rs. 7,65,445/-with applicable interest as per Section 11BB of the Central Excise Act effective after three months of filing of its original refund application dated 14-10-2013 and the respondent-department is directed to pay the same within 3 months of communication of this order.”

4.13 Thus in view of the above discussions I conclude that the amounts deposited by the appellant for which they have filed these refund claims were in fact toward the Central Excise duty payable. This position will not be altered even if the said amounts were paid under protest under the head of central excise duty (Major Accounting Head-0038). Payment made under protest will only, as per Section 11 B will not be hit by the bar of limitation. Any other interpretation sought to be made will be contrary to the provisions of the Section 11B and the decisions referred above.

4.14 Appellant has relied upon the decision of Hon’ble Apex Court in the case of Salonah Tea Company [1988 (33) ELT 249 (SC)]. I do not find application of the said decision to the present case as the issue under consideration in that decision was rejection of refund claim on the ground of limitation. In facts of the case it was held that the refund claim was not barred by limitation.

4.15 Appellant has also relied upon the decision in the case of Kuil Fireworks [1997 (95) ELT 3 (SC)]. This decision was considered by the Delhi Bench in the case of BHEL [] and following was observed:

“3. 1997 (95) E.L.T. 3 is a decision of the Apex Court. On going through the above decision we find that the appellant had paid a sum of Rs. 1,50,000/- towards impugned demand of the excise duty and a further sum of Rs. 50,000/- was paid by the appellant in pursuance of the interim order of the Tribunal, subsequently. While allowing the appeal of the party by setting aside the judgment of the Tribunal the Supreme Court directed a refund of the entire amount of Rs. 2 lakhs to the appellant with interest at the rate of 12%, since the demand has been quashed by the judgment of the Apex Court. On going through Paragraph 7 of the judgment, where this issue has been considered, we do not find any specific direction to pay interest on the amount of pre-deposit from the date of pre-deposit. We do not also find any consideration of the question whether in all cases where pre-deposit was made pursuant to Provisions contained in Section 35F of the Central Excise Act such amount is liable to be refunded with interest from the date of deposit once the appeal is disposed of in favour of the appellant.

4. As far as the other two decisions are concerned, namely, the decision of the Madras High Court [115 E.L.T. 302] and that of the Bombay High Court [82 E.L.T. 177] there is a specific consideration of this aspect and it has been held that the parties are entitled to refund of the pre-deposit amount with interest but only from the date of the Final Order of the Tribunal. This aspect has not been noted in the order of the Tribunal in (126) E.L.T. 1225.

5. In 82 E.L.T. Page 177 the Final Order of the Tribunal was dated 30th November, 1993. The party’s prayer for refund of the amount deposited under Section 35F did not receive favourable response. On the other hand, a Show Cause Notice was issued why the amount deposited should not be forfeited. This Notice was challenged by the party before the Bombay High Court under Article 226 of the Constitution. A Bench of the Bombay High Court took the view that in respect of deposit made under Section 35F, Provisions of Section 11B can never be applied. A deposit under Section 35F is not a payment of duty but only a pre-deposit for availing the right of appeal and such amount is bound to be refunded when the appeal is allowed with consequential relief. While quashing the Show Cause Notice the Bench directed refund of the amount forthwith alongwith interest at the rate of 15% per-annum from 30­11-1993, namely, the date of the Final Order of the Appellate Tribunal.

6. The case reported in 115 E.L.T. 302 a learned Single Judge of Madras High Court was considering a Writ Petition filed by the party who was refused refund of the pre-deposit amount after his appeal was allowed by the Tribunal. The learned Judge observed that the petitioner having succeeded in his appeal the respondents had no authority to retain the pre-deposit amount after the disposal of the appeal by the Tribunal on 29-2-97. The Court further observed that the amount should have been refunded at least after the rejection of the Revenue’s application for a reference. While allowing the Writ Petition direction was given to refund the amount of pre-deposit with interest of 15% per-annum from 27-10-1997 on which date the reference application submitted by the Revenue came to be rejected. A similar question again came up for consideration by a Bench of the Madras High Court in Commissioner of Central Excise, Chennai v. Calcutta Chemical Co. Ltd. [2001 (133) E.L.T. 278 (Mad.)]. Here also the Court took the view that interest on the pre- deposit amount is payable only from the date of the Final Order of the Tribunal.

7. The above facts would clearly show that the decisions of the Madras High Court and Bombay High Court are no authority to grant interest on the amount of pre-deposit w.e.f. the date of deposit in case there is a delay in making the refund after the Final Order of this Tribunal. The entitlement for refund would arise only when the appeal was finally disposed of in favour of the appellant by the Tribunal. If that be so no interest can be claimed for the period prior to the date of Final Order. We, therefore, find that the decision of the South Zonal Bench in [126 E.L.T. 1225] is no authority for the applicant before us to claim interest on the amount of pre-deposit w.e.f. the dates of the pre-deposit.

8. We find that in this case the Revenue has already made refund of the pre-deposit amount in respect of the above mentioned appeals on 28-2-2001 and 21-9-2001. We hold that the applicants are not entitled to interest as prayed by them from dates of the pre-deposit. In the result the applications stand dismissed.”

This decision of tribunal has been affirmed by the Hon’ble Apex Court as reported at [2008 (224) ELT A133 9SC)].

4.16 Considering the decision of Hon’ble Apex Court in the case of Kuil Fireworks, Hon’ble Gujarat High Court has in case of Padmanabh Silk Mills [2006 (193) E.L.T. 536 (Guj.)] observed as follows:

“11. From the above, it is clear that u/s. 11B(2) of the Central Excise Act, 1944, on making an Application for refund u/s. 11B(2) the concerned Authority must be satisfied that whole or part of any duty of excise paid by the applicant is refundable or not and on he being satisfied, he has to pass order accordingly and the amount so determined shall have to be credited to the fund subject to the provision of Section 11(2). If there is a delay of refund then interest has to be awarded u/s. 11BB of the Act.

Thus, from the bare reading of Sections 11B(2) and 11BB of the Act, it is clear that if the concerned Authority satisfied with the case of the applicant of refund then it is to be paid within 3 months from the date of receipt of the Application and if it is not paid then the interest has to be paid on it u/s. 11BB of the Act.

12. In view of the above, we are of the considered opinion that the Authority has not committed any error while rejecting the claim of interest on the deposit by an order dated 29-8-2001 (Annexure: I). However, the submission of Shri Dave for the petitioner was that he was required to deposit amount of Rs. 4 lakhs by way of pre-deposit in view of the conditional order passed on Stay Application filed in Appeal which was towards the duty itself. In our considered opinion, the provision of Section 35F of the Central Excise Act, 1944 are meant totally for a different purpose. It is only with a view to see that frivolous Appeals are not entertained, therefore, the order of pre-deposit of duty demanded or penalty levied is passed by the Appellate Authority while granting conditional stay. In the instant case also the petitioners were directed to pay, not only the duty, but also the penalty, therefore, the petitioners cannot claim interest on refund. Interest on refund can be awarded only under the provision of Section 11BB of the Act when there is a delay on the part of the Authority even after the order of refund was passed otherwise not.

13. In view of the above, we are of the considered opinion that Larger Bench of the CEGAT, without considering all this aspect, mechanically passed an order relying on the Judgment of the Apex Court in Kuil Fireworks Industries (supra). We have also set out the principles and the facts of Kuil Fireworks Industries Ltd. case and at the cost of repetition we may state that the issue was never before the Hon‘ble Supreme Court which is raised in this petition. The Hon‘ble Supreme Court allowed the Appeal against the impugned order passed by CEGAT and there it had awarded interest. We fail to appreciate that how the Hon‘ble Supreme Court Judgment in Kuil Fireworks (supra) will have any application. In our considered opinion the Larger Bench of the CEGAT, without properly applying itself, might have followed that Judgment and held that the department was bound to pay interest on the belated claim of refund u/s. 11BB of the Act.

14. This brings us to the Judgment of the learned Single Judge of MP High Court in the case of Hope Textiles Ltd. (supra). The learned single Judge, without considering the provisions of either Sections 11BB or 11B(2) of the Act straightway allowed the writ petition on the basis of the Hon‘ble Supreme Court Judgment in the case of Elpro International Ltd. v. Joint Secretary, Government of India, reported in 1985 (19) E.L.T. 3 (S.C.), wherein the Hon‘ble Supreme Court has held that…… . “Since in the instant case, excise duty was wrongly collected in 1966 and the amount was refunded in May, 1977, therefore, it will neither be harsh nor unjust if an amount of Rs. 50,000/- is paid by the Union to the Respondent Company on account of such interest together with the amount of costs.”

The same is the case with the Judgment of the learned Single Judge of Madras High Court delivered in Oswal Agro Mills Ltd. (supra.), where the learned Single Judge of the Madras High Court, without considering the provisions of either Sections 11BB or 11B(2) allowed the writ petition only on the ground of delay at every stage on the part of the respondents.

15. This brings us to the Division Bench Judgment of the Bombay High Court in the case of Suvidhe Ltd. (supra). It is no doubt true that the Bombay High Court considered Section 35F and 11B, but surprisingly, without any discussion, the Bombay High Court held that in respect of deposit made u/s. 35F the provision of Section 11B can never be made applicable. If that is so, then the case of the petitioner falls.

16. In view of the above discussion, we are of the considered opinion that when specific application is made u/s. 11B(2) of the Central Excise Act, 1944 for interest on belated refund then the same has to be considered and decided by the Authority in light of the provisions of Section 11B(2) as well as Section 11BB of the Act, 1944. As Section 11BB of the Act provides interest for delayed refund of duty and not of deposit, therefore, in our considered opinion the respondent – Authority was right in rejecting the claim of interest on the delayed refund by its impugned order dated 29-8-2001 (Annexure-I).

4.17 I also observe that this decision of Hon’ble Supreme Court was relied upon by the Hon’ble Allahabad High Court in the case of E-biz.com Pvt. Ltd. [2017 (49) S.T.R. 389 (All.)] holding as follows:

31. Then we come on the question of interest on refund. In this regard, we find that a Division Bench of Delhi High Court in Surinder Singh v. Union of India – 2006 (204) E.L.T. 534 (Del.) relying on Supreme Court‘s judgment in Prince Khadi Woollen Handloom Producers Co-operative Indl. Society v. CCE – 1996 (88) E.L.T. 637 (S.C.), said that State, if has wrongly collected a tax from a person, and, even if there is no specific provision, still is liable to refund tax along with interest. Similar view was taken in Kuil Fireworks v. CCE – 1997 (95) E.L.T. 3 (S.C.) and CCE, Hyderabad v. ITC – 2005 (179) E.L.T. 15 (S.C.).

32. Recently also in Union of India v. Tata SSL Ltd. – 2007 (218) E.L.T. 493 (S.C.), Court held that pre-deposit is refundable along with interest and for that purpose, relied on its decision in Commissioner of Central Excise, Hyderabad v. I.T.C. Ltd. (supra) and Central Board of Excise and Customs‘ Circular dated 8-12-2004.

33. In a recent judgment of Gujarat High Court in Hindustan Coca-Cola Beverages Pvt. Ltd. v. UOI – 2015 (324) E.L.T. 299 (Guj.), an argument was raised, if there is no provision for payment of interest, the same shall not be payable. Court in Paras 5.4 and 6 said as under :-

“5.4 The contention to the effect that no interest is payable because there is no provision of interest under the scheme of the Act is also thoroughly misconceived and misplaced. When the Department acts illegally and not as per the scheme of the Act, the interest on such refund can never be provided for under the Scheme of the Act. If the authorities act as per the law, the question of granting interest on refund can be appreciated and considered as per the scheme of the Act.

6. Learned Senior Advocate for the petitioner cited various judgments in support of his contention that even in absence of any statutory provision, interest on refund is automatic and has to be granted on commercial principles. The Court finds force in the contentions of the learned Senior Advocate for the petitioner. The learned counsel has placed reliance on the decision of the Hon‘ble Supreme Court in the case of Sandvik Asia Ltd. v. Commissioner of Income-tax, Pune (supra), wherein the Hon‘ble Apex Court even while finding that there was no statutory provision to pay interest on delayed payment of interest, held the assessee entitled to the same on general principles and found that the assessee would be entitled to be compensated by way of interest on interest. It was further pointed out by the learned Senior Advocate for the petitioner that the decision of the Hon‘ble Supreme Court in the Sandvik Asia Ltd. v. Commissioner of Income-tax, Pune (supra), has been referred to a Larger Bench in the case of Commissioner of Income-tax, Gujarat v. Gujarat Flouro Chemicals, (2012) ITR 319 (SC). The said decision is neither stayed nor suspended and therefore, continues to hold the field. Moreover, the said decision is doubted with respect to the issue whether interest is payable by the Revenue to the assessee if the aggregate of instalments of Advance tax/TDS paid exceeds the assessed tax. Therefore, a doubt is cast only in respect of the finding which is in context with Section 214 and Section 244 of the Income-tax Act, 1961 and not with regard to grant of interest as compensation to the party who has been wrongfully deprived of the use of its money by an illegal retention of the same by the authority. Therefore, the said decision will continue to hold good in respect of refund cases, on equitable considerations, where any amount is wrongfully withheld from an assessee without authority of law.”

34. We may also refer here on a Division Bench‘s judgment of Karnataka High Court in Commissioner of Central Excise v. KVR Construction – 2012 (50) VST 469 = 2012 (26) S.T.R. 195 (Kar.), wherein construing Section 11B, Court said that it refers to claim for refund of duty of excise only and does not refer to any other amount collected without authority of law. That was a case of ^„Service Tax‘ and Court said as under :-

“Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not liable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to leavey and collect such service tax. In case, the department were to demand such payments, petitioner could have challenged it as unconstitutional and without authority of law. If we look at the converse, we find mere payment of amount, would not authorize the department to regularize such payment. When once the department had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of “service tax” liable to be paid by them. Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a “service tax” payable by them. When once there is lack of authority to demand “service tax” from the respondent company, the department lacks authority to levey and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion.”

35. The consensus of the authorities of various High Courts as well as Supreme Court is that any amount received by Revenue, as deposit or pre-deposit i.e. unauthorizedly or under mistaken notion, etc., cannot be retained by Revenue since it has no authority in law to retain such amount and it must be refunded with interest.”

4.18 I observe that the above decision has relied heavily upon the decision of Hon’ble Supreme Court in the case of Sandvik Asia. Referring to decision of Hon’ble Gujarat High Court in case of Hindustan Coca Cola, (Para 35 of Allahabad High Court decision), it is also noted that the issue in respect of the said decision was referred to larger bench. Since then larger bench of Supreme Court has decided the issue observing as follows:

“5. Since, there was an inordinate delay on the part of the Revenue in refunding the amount due to the assessee this Court had thought it fit that the assessee should be properly and adequately compensated and therefore in paragraph 51 of the judgment, the Court while compensating the assessee had directed the Revenue to pay a compensation by way of interest for two periods, namely; for the Assessment Years 1977-78, 1978-79, 1981-82, 1982-83 in a sum of Rs. 40,84,906/- and interest @ 9% from 31-3-1986 to 27-3-1998 and in default, to pay the penal interest @ 15% per annum for the aforesaid period.

6. In our considered view, the aforesaid judgment has been misquoted and misinterpreted by the assessees and also by the Revenue. They are of the view that in Sandvik case (supra) this Court had directed the Revenue to pay interest on the statutory interest in case of delay in the payment. In other words, the interpretation placed is that the Revenue is obliged to pay an interest on interest in the event of its failure to refund the interest payable within the statutory period.

7.As we have already noticed, in Sandvik case (supra) this Court was considering the issue whether an assessee who is made to wait for refund of interest for decades be compensated for the great prejudice caused to it due to the delay in its payment after the lapse of statutory period. In the facts of that case, this Court had come to the conclusion that there was an inordinate delay on the part of the Revenue in refunding certain amount which included the statutory interest and therefore, directed the Revenue to pay compensation for the same not an interest on interest.

8.Further it is brought to our notice that the Legislature by the Act No. 4 of 1988 (w.e.f. 1-4-1989) has inserted Section 244A to the Act which provides for interest on refunds under various contingencies. We clarify that it is only that interest provided for under the statute which may be claimed by an assessee from the Revenue and no other interest on such statutory interest.”

4.19 Further in case of Willowood Chemicals Pvt. Ltd. [2022 (60) G.S.T.L. 3 (S.C.)]

“18.Coming back to the present cases, the relevant provision has prescribed rate of interest at 6 per cent where the case for refund is governed by the principal provision of Section 56 of the CGST Act. As has been clarified by this Court in Modi Industries Ltd. and Godavari Sugar Mills Ltd. wherever a statute specifies or regulates the interest, the interest will be payable in terms of the provisions of the statute. Wherever a statute, on the other hand, is silent about the rate of interest and there is no express bar for payment of interest, any delay in paying the compensation or the amounts due, would attract award of interest at a reasonable rate on equitable grounds. It is precisely for this reason that paragraph 9 of the decision in Godavari Sugar Mills Ltd. accepted the submission made by the Learned Counsel for the respondents and confined the rate of interest to the prescription made in the statute. The award of interest at a rate in excess of what was prescribed by the statute was only for a period beyond 20 years where the matter was not strictly covered by the statute and as such it would be in the realm of discretion of the Court. It must also be noted here that the inordinate delay of up to 17 years in making refunds was a special circumstance when this Court was persuaded to accept grant of interest at the rate of 9 per cent per annum in Sandvik Asia Ltd. Even while doing so, the observations made by this Court in Paragraph 48 of the decision are quite clear that “the award of interest in refund and amount must be as per the statutory provisions of law and whenever a specific provision has been made under the statute such provision has to govern the field.” The subsequent decision of the Bench of three Judges in Gujarat Fluoro Chemicals noticed that the grant of interest at the rate of 9 per cent was in the facts of the case in Sandvik Asia Ltd.”

4.20 Considering the decision of E-biz, Hon’ble Delhi High Court has in the case of Goldy Engineering Works [2023 (10) CENTAX 189 (Del)] observed as follows:

“31. In eBIZ, the Allahabad High Court was not dealing with a claim for refund of “duty” but an amount deposited in the course of investigation. The High Court further went on to hold that even in the absence of a statutory provision if it be found that tax or duty had been wrongly collected, it would be liable to be refunded. There cannot be a dispute with regard to the aforenoted general proposition. What we seek to emphasize here is that in the present case, the issue of refund is duly regulated by two statutory provisions whose prescriptions would necessarily have to be adhered to. However, for reasons aforenoted we find ourselves unable to endorse the observation appearing in Para 34 of the report where a deposit of duty and a pre deposit were considered to be identical concepts. As was noted hereinbefore, a pre-deposit made as a condition of filing an appeal is in any case not considered to be “duty” even by the respondents.

32. The decision of this Court in Team HR Services, had frowned upon the distinction sought to be advocated by the respondents there between a deposit made under protest and a pre-deposit made in connection with an appeal. As would be further evident from a reading of Paras 14 and 15 the counsel appearing for the respondents had also failed to draw the attention of the Court to any statutory provision which governed the issue of refund. The aforesaid decision is thus clearly distinguishable especially when undisputedly, in the present matters the issue of refund is governed by the provisions of Sections 11B and 11BB.”

4.21 Supreme Court in Ranbaxy Laboratories Ltd. v. Union of India and Ors. [(2011) 10 SCC 292 = 2011 (273) E.L.T. 3 (SC) = 2012 (27) S.T.R. 193 (SC)] has held as follows: –

“12. It is manifest from the afore extracted provisions that Section 11-BB of the Act comes into play only after an order for refund has been made under section 11-B of the Act. Section 11-BB 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 sub­section (1) of Section 11-B 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 the proviso to Section 11 -BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or the 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 11-B 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 11-BB of the Act.

13. Manifestly, interest under section 11-BB of the Act becomes payable, if on 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 11-BB 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 11-B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under section 11-BB of the Act becomes payable. 14. 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. IRC [(1921) 1 KB 64] and Ajmera Housing Corpn. v. CIT [(2010) 8 SCC 739]”

4.22 In view of the discussions as above I conclude that the appellant shall be entitled to interest as per the provisions of Section 11BB of the Central Excise Act, 1944 i.e. @ 6% after expiry of three months from the date of filing of the refund claim which is 28.04.2025. Appellant in their written submission has referred to certain refund claim filed by them for an amount of Rs 19,87,934/- which was returned to them with certain queries on 08.08.2024. This is not the refund claim under consideration in these proceedings even the Order-in-Original which has been the basis for filing this refund claim is dated 30.03.2025. Thus I determine that the appellant has filed the refund claim on 28.04.2025 and in terms of Section 11 BB interest shall be due for the period of delay after 27.07.2025.

5.1 Appeal is disposed of.

(Order pronounced in open court on-24 June, 2026)