2016 (5) TMI 9

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....nd conferred by Section 11BB of the Central Excise Act, 1944, the Petitioners are seeking a Writ of Mandamus or any other appropriate Writ, Order or Direction directing and commanding these Respondents to forthwith sanction and grant interest on a sum of Rs. 2,00,00,000/- deposited by the Petitioner on 7th September 2006 till the date of actual payment under Section 11B of the Central Excise Act, 1944 ("the Act"). 4. At the outset, Mr. Shah, learned Advocate appearing on behalf of the Petitioner would submit that the interest is due and payable from the date of the application seeking refund till the date of payment. 5. Mr. Shah would rely upon the order passed by the Assistant Commissioner, Central Excise, Taloja Division, Belapur Co....

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.... Provided where any duty ordered to be refunded under sub-section (2) of section 11-B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the Applicant 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 or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11-B, the order passed by the Commissioner (Appeals), Appellat....

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.... interest as claimed is not payable. Hence, he relies upon the stand taken in the Affidavit in Reply. Mr. Bhate would submit that the Petition be dismissed. 9. We have, with the assistance of the Advocates appearing for both the sides, perused the Petition and all annexures thereto. It is not necessary to go into the recovery or the proceedings pursuant to which the Petitioner brought in the sum of Rs. 2,00,00,000/-. The Affidavit in Reply goes on to narrate as to how the payment of duty was an obligation of the Petitioner/Assessee and which was not discharged. The essential facts have not been disputed by the Revenue at all. 10. We find that the findings of the Assistant Commissioner at page 147 of the paper-book refer to a payment o....

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....of that provision sets out as to what is to be done after receipt of the application of refund. If, on receipt of any such application, the Authority is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the Applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund. In the present case, however, the credit to the Fund has not taken place, simply because the provisos to this sub-section would be attracted. The proviso says that the credit to the Fund may not take place and instead the amount shall be paid to the Applicant if it is relatable to what is set out in the clauses in the proviso. Once the case was not of a credit to th....