Astrazeneca India Pvt. Ltd. Vs Commissioner Of Central Tax (CESTAT Bangalore)
Since the issue of interest on delayed refund has been settled by the apex court in the case of Ranbaxy Laboratories Ltd. (supra) wherein Hon’ble Supreme Court has held that interest on delayed refund under Section 11BB is payable on expiry of three months from the date of receipt of application under Section 11B(1) and not from the date of the order of refund or appellate order allowing such refund. Hence, I hold that appellant is entitled for interest as per the apex court decision in the case of Ranbaxy Laboratories Ltd. (supra).
FULL TEXT OF THE CESTAT BANGALORE ORDER
The present appeal is directed against impugned order dated 8.12.2020 passed by the Commissioner of Central Tax (Appeals), Bangalore whereby the Commissioner(A) has rejected the refund claim on the grounds of limitation as interpreted in Section 11B of the Central Excise Act, 1944.
2. Briefly the facts of the present case are that the appellant are registered with the Service Tax department. They filed an application on 17.7.2007 for claiming refund in terms of Rule 5 of CENVAT Credit Rules, 2004 for the year 2006-2007. Thereafter, a show-cause notice dated 27.2.2008 was issued to the appellant proposing to deny the refund. Appellant filed reply to the show-cause notice and the Deputy Commissioner vide Order-in-Original dated 7.7.2008 allowed the refund claim to the extent of Rs.3,85,681/- and rejected the balance refund claim. Aggrieved by the said Order-in-Original, appellant preferred an appeal before the Commissioner of Central Excise (Appeals) and the Commissioner (A) vide order dated 22.12.2008 partially allowed the refund claims towards the credit availed on the ‘Security Services’ and ‘Clearing and Forwarding charges’ and rejected the balance claim. Aggrieved by the Order-in-Appeal, appellant filed appeal before CESTAT and CESTAT vide Final Order No.21260/2016 dated 16.7.2014 allowed the appeal and set aside the order rejecting the refund claim. Further, the said order was communicated on 25.11.2016. Thereafter, consequent to the order of CESTAT, appellant submitted a letter dated 21.2.2017 requesting for grant of refund. Thereafter, vide letter dated 16.3.2017 Assistant Commissioner requested for additional set of refund application along with enclosure for processing the refund claim. Thereafter, on 19.3.2019 appellant submitted letter along with a copy of the refund claim dated 7.8.2017 and also documents. Vide order dated 15.7.2019 CESTAT dismissed the appeal filed by the Department against the order of the Commissioner (A). Appellant also submitted sample copy of invoices along with letter and the original authority vide order dated 23.11.2019 rejected the refund claim on the ground of limitation as the refund application was not filed within one year from the date of receipt of the order of the CESTAT. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) and the Commissioner (A) upheld the order of the original authority and rejected the refund claim. Hence, the present appeal.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the application for refund need not be made at each stage of adjudication process of an original refund claim and there is no express provision in CENVAT Credit Rules, 2004 for filing of subsequent application. He also submitted that the relevant date as envisaged in Section 11B of the Central Excise Act, 1944 applies only to the first application of refund claim made to Assistant/Deputy Commissioner. It was his further submission that the refund, in the present case, has not accrued on account of any order or judgment but the refund was originally claimed based on the statutory provisions read with the Notification which grants refund of credit of input / input services used for export of services as per Rule 5 of CENVAT Credit Rules, 2004. He also submitted that the application for refund claim was not time barred but was well within the period of limitation. For this submission, he relied upon the following decisions:
