ORDER
Jyoti Balasundaram, Vice-President
1. Both the appeals are involved a common issue and hence heard together and disposed of by this common order.
2. Briefly stated the facts are that the assessee filed claim for refund of Rs. 1,34,805/- on 16-12-99 which was sanctioned by the adjudication order dated 2-2-2000 passed by the Asstt. Commissioner of Cen. Excise, Pune but adjusted against Government dues as confirmed by the Order-in-Original No. 52/CEX/99 passed by the Addl. Commissioner, Pune-I, of Rs. 15 lakhs approximately. Aggrieved by this order, the assessee filed an appeal before the Commissioner (Appeals) who by his order dated 28-4-2005 allowed the appeal finding that the Government dues have been reduced to Rs. 5,68,445/- and then set aside vide Order-in-Appeal dated 3-1-2005 passed by the Commissioner (Appeals), Pune-III. He, therefore, held that the assessee was entitled to payment or the amount claimed as refund together with interest under the provisions of Section 11BB of the Central Excise Act, 1944 from 15-3-2000 i.e. from the date immediately after the expiry of 3 months from the date of receipt of the application (i.e. 16-12-1999) till the date of refund of the duty. It is against this order that the Revenue has preferred Appeal No. E/2642/05.
3. Vide a separate Order-in-Original No. 143/Refund/CEX/2005 dated 16-11-2005, the Asstt. Commissioner sanctioned the claim without sanctioning the interest on the ground that the Revenue had filed appeal against Order-in-Appeal dated 28-4-2005. Against this order, the assessee filed appeal before the Commissioner (Appeals) who vide Order No. PIII/61/06 dated 3-4-2006, rejected the appeal as barred by limitation as she was not satisfied with the ground furnished for the delay in filing the appeal. This has given rise to Appeal No. E/2270/06 by the assessee.
4. I have heard both sides. Section 11BB of the Central Excise Act, 1944 which provides for interest on delayed refund stipules that-
If any duty 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 ten per cent and not exceeding 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 3 months from the date of receipt of such application till the date of refund of such duty.
In this case, the date of receipt of the application for refund is 16-12-99 and the duty ordered to be refunded was not refunded within the period of 3 months from 16-12-99, although the refund claim was sanctioned, for the reason that the amount was adjusted against Government dues owing from the as-sessees. Therefore, the contention of the ld. DR that the provisions of Section 11BB are not attracted in the present case as the duty was refunded by the Asstt. Commissioner’s order dated 2-2-2000 is not tenable for the reason that such order only sanctioned the refund claim but appropriated it towards Government dues and the refund amount was not paid/refunded to the assessee. In this view of the matter, I agree with the assessee that as per the statute provisions, they are entitled to interest from 15-3-2000 i.e. immediately after the expiry of 3 months from 16-12-99, uphold the order impugned in the Revenue’s appeal and dismiss the appeal of the Revenue.
5. The assessee’s appeal is dismissed as no grounds have been made out for condoning the delay in filing the appeal before the lower Appellate authority.
6. In the result both the appeals are rejected.