Page 165 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] DEVENDRA UDYOG v. COMMISSIONER OF CGST, JODHPUR 387

The point to be adjudicated herein is of a very narrow scope that is
as to whether the appellant is entitled for interest on the delayed pay-
ment of refund either at the rate of 6% or at the rate of 12% of the amount
of refund. The relevant statute for the purpose of Section 11BB, which
reads as follows :
“Section 11BB. Interest on delayed refunds. ……
If any duty is ordered to be refunded under sub-section (2) of section 11B to
any applicant is not refunded within three months from the date of receipt
of application under sub-section (1) of that section, there shall be paid to
that applicant interest at such rate, not below five per cent and not exceed-
ing thirty per cent per annum as is for the time being fixed by the Central
Government, by Notification in the Official Gazette, on such duty from the
date immediately after the expiry of three months from the date of receipt
of such application till the date of refund of such duty :
Provided that where any duty ordered to be refunded under sub-
section (2) of section 11B in respect of an application under sub-
section (1) of that section made before the date on which the Fi-
nance Bill, 1995 receives the assent of the President, is not refunded
within three months from such date, there shall be paid to the ap-
plicant 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 Commissioner of Central Excise or Deputy Com-
missioner of Central Excise, under sub-section (2) of section 11B, the order
passed by the Commissioner (Appeals), Appellate Tribunal, National Tax
Tribunal or, as the case may be, by the court shall be deemed to be an order
passed under the said sub-section (2) for the purposes of this section.”
The perusal leaves no doubt that the assessee is entitled to interest if
the payment had not been paid to him within 3 months of finalization of
the claim at such rate as is prescribed under the law.”
4. No doubt the section records the range for rate of interest i.e. from
5% to 30% but section itself specifies that the rate within such range as for the
time being fixed by the Central Government by notification in the official gadget.
5. As Learned DR has brought to my notice that there has already been
a Notification No. 67/2003, dated 12-9-2003 by which the rate of interest has been
fixed at 6%, I am of the opinion that the interest @ 6% of the amount as has al-
ready been ordered to be refunded can only be sanctioned.
6. Though the Learned Counsel has laid emphasis on Final Order No.
5/266, dated 4-9-2019 as announced by this very bench wherein after relying the
decision of Hon’ble Apex Court in the case of Commissioner, Central Excise, Hyder-
abad v. ITC Ltd. reported as 2005 (179) E.L.T. 15 (S.C.) and M/s. Govind Mills Ltd.
v. C.C.E., Allahabad reported as 2014 TIOL 677 (HC) = 2014 (35) S.T.R. 444 (All.)
the interest @ 12% was ordered. It was also the opinion formed that the notifica-
tion as relied upon by the department cannot supersede the statute. But it is ob-
served as on date that while forming that opinion the words, “as for the time be-
ing is fixed by the Central Government by notification in the official gadget”
were inadvertently not taken into consideration.
EXCISE LAW TIMES  1st May 2020  165