S.S. Garg ORDER
S.S. Garg, Member (J)
1. The present appeal is directed against the impugned order dated 15/05/2019 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has allowed the interest to the appellant after the expiry of three months from the date of receipt of application under Section 11B (1) of the Central Excise Act i.e. 10/10/2017.
2. Briefly the facts of the present case are that the appellant is a manufacturer of both dutiable and exempted goods and is therefore required to maintain separate accounts for receipt, consumption and inventory of inputs meant to be used for dutiable goods and exempted goods as per Rule 6(3) of the Cenvat Credit Rules, 2004. They are eligible to avail credit on that quantity of inputs used in the manufacture of dutiable goods. In case no separate accounts are maintained, they shall pay an amount equivalent to 10% of the value of the exempted goods cleared or he shall pay an amount equivalent to cenvat credit attributable to inputs used in relation to the manufacture of exempted goods.
During the period from 15.04.2008 to 31.12.2008, the assessee had cleared excisable goods to different developers of SEZ without payment of duty and since they neither maintained separate accounts nor did they reverse/pay the duty as per Rule 6(3) of the CCR, 2004, they appeared liable to pay 10% of the value of goods supplied to SEZ Developers. A show-cause notice was issued demanding an amount of Rs. 36,81,089/- (Rupees Thirty Six Lakhs Eighty One Thousand and Eighty Nine only) to be paid/reversed by them. The demand in the show-cause notice was confirmed earlier Order-in-Original No. 29/2010 dated 30.04.2010. The assessee preferred an appeal before the Commissioner (Appeals) wherein vide Order-in-Appeal No. 188/2011 CE dated 20.06.2011, the Commissioner (Appeals) upheld the order of the original adjudicating authority. Aggrieved by the order of the Commissioner (Appeals), the appellant filed appeal before the Tribunal along with the stay application and the Tribunal vide Order dated 17/05/2012 ordered for stay of recovery of adjudged dues. Thereafter, on 16/12/2012 the jurisdictional Superintendent of Central Excise initiated recovery proceedings vide letter C. No. 1370/2012 on the basis that the Stay Order by the CESTAT is vacated. Stay order further extended by the CESTAT on 27/12/2012. Thereafter, on 10/01/2013 on the basis of insistence of the jurisdictional officers, the appellant remitted an amount of Rs. 36,81,089/- (Rupees Thirty Six Lakhs Eighty One Thousand and Eighty Nine only) under protest and this fact was also communicated to the Department vide letter dated 10/01/2013. Thereafter on 25/07/2017, the Tribunal vide its Final Order No. 21720/2017 dated 25/07/2017 allowed the appeal in favour of the appellant. Thereafter on 10/10/2017, the appellant approached the Department to sanction the refund of Rs. 36,81,089/- (Rupees Thirty Six Lakhs Eighty One Thousand and Eighty Nine only) along with applicable interest from the date of recovery of the said amount. Thereafter, the Department vide Order-in-Original dated 31/05/2018 sanctioned refund of Rs. 36,81,089/- (Rupees Thirty Six Lakhs Eighty One Thousand and Eighty Nine only) but rejected the interest claim. Thereafter appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned order held that appellant is entitled for interest only to the extent of delay in payment of refund from the date of refund claim after the order of the CESTAT. 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........