2006 (3) TMI 423

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....e Respondent. [Order]. - In this appeal the order made by the Commissioner (Appeals) on 7-6-2004 has been challenged on the ground that the Appellate Commissioner ought to have considered the claim of the appellant for interest, as per the provisions of Section 11BB of the Central Excise Act, 1944. 2. It appears from the record that refund claim of Rs. 1,77,867/- was made by the appe....

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.... duty was debited through that account by order dated 19-11-2003. The Assistant Commissioner, however, did not pass any order in respect of interest which was prayed for in the application. The appellant therefore, preferred an appeal before the Commissioner against the order of the Assistant Commissioner it the extent that it did not consider the claim of interest under Section 11BB of the said A....

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....ider the claim which was made in respect of interest amounted to failure to exercise jurisdiction in the matter as regards that claim since the Assistant Commissioner was required to consider that claim and take a decision thereon. The order made by him to the extent that he did not consider the claim for interest was therefore flawed. Therefore, it can not be said that no appeal under Section 35 ....

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....aid that the appeal did not lie against the impugned order on the ground that no decision was taken on the claim of interest. A decision ought to have been taken either way by Assistant Commissioner and his not taking the decision itself vitiated the order to the extent that the decision was not taken, against which the appellant was justifiably aggrieved since his claim for interest was not addre....