ORDER
P.G. Chacko, Member (J)
1. The appellants had taken Modvat credit of Rs. 3,52,055/- on certain capital goods received in their factory in 1995. A show cause notice was issued by the Department for disallowing this credit. The original authority disallowed the credit, whereupon the party debited the above amount in their RG 23C Part II, even while preferring an appeal to the Commissioner (Appeals) against the decision of the original authority. The appellate authority by order dated 21-2-97 allowed the Modvat credit to the assessee. Appeal filed by the Department against the decision of the Commissioner (Appeals) was dismissed by the Tribunal as per Final Order Nos. 1516-1517/2001, dated 4-9-2001 [2002 (147) E.L.T. 546 (T)]. Thereafter, the appellants took re-credit of the above amount in their Cenvat Account on 20-3-2002. Next day, they filed a claim for “Refund” of interest on the credit amount of Rs. 3,52,055/-. Both the original authority and the first appellate authority held that there was no provision in law for payment of such interest. Hence the present appeal.
2. Heard both sides. The learned Counsel for the appellants relies on the decision of the Tribunal in the case of CCE, Mehsana v. Annapurna Plastopack Pvt. Ltd. and submits that interest is liable to be paid on delayed refund of Modvat credit amount under Section 11BB of the C.E. Act, 1944. The learned JDR seeks to distinguish the cited case by submitting that, in that case, the amount of Modvat credit had been refunded pursuant to a specific order passed by the first appellate authority and interest was claimed on the ground of delayed refund, which claim attracted Section 11BB. The learned JDR has also contested the arguments advanced by the learned Counsel with reference to Clause (c) of the proviso to Sub-section (2) of Section 11B.
3. After careful consideration of the facts of the case and the submissions made by both sides. I find that the Modvat credit in question was allowed by the Commissioner (Appeals) as early as on 21-2-97 and it was very much open to the assessee to take credit in RG 23C Part II on the strength of the order of the Commissioner (Appeals). The party, however, did not choose to do so, nor did they feel like availing the benefit for a long time after the order of the Commissioner (Appeals) was affirmed by the Tribunal. They took credit as late as on 30-3-2002, for which the Department cannot be faulted. Apparently, this is not a case of delayed grant of Modvat credit but one of delayed availment of credit. Therefore, the assessee is not entitled to claim interest on the credit amount from the Department. This being the position, it is not necessary for me to go into any meticulous examination of the rival contentions made with reference to Section 11B and Section 11BB. Moreover, the case law cited by the learned Counsel is not applicable to the facts of this case inasmuch as, in that case, as rightly pointed out by the learned JDR, there was delay on the part of the Department in refunding the Modvat credit amount even after the credit was allowed to the assessee by the first appellate authority. As I have already noted, the instant case is not one of delayed refund of Modvat credit.
4. For the reasons noted above, the impugned order cannot be interfered with. The appeal is rejected.
(Dictated and pronounced in open Court)