2007 (11) TMI 107

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....nal by its order dated 31-10-01 and not by order passed by the Id. Commissioner (Appeals) where the question of refund ability was not dealt. Accordingly, he held that the lower authorities below committed an error in calculating interest from the date after expiry of three months of the ld. Commissioner's order dated 31-10-97 disposing SCN dated 6-1-97 and that authority should recalculate the quantum of interest payable from 1-2-02 and take appropriate steps to recover excess payment of interest so paid along with the interest on the excess. 2.   Ld. Commissioner (Appeals) passed an order as aforesaid on 29-12-06 without having regard to the order of the Hon'ble Supreme Court in Civil Appeal No. 9725/2003 disposed on 2-12-04 ....

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....ld. Counsel, Shri K. K. Banerjee, appearing for the Appellant submitted that if the Tribunal's order dated 1-5-03 had been given effect which was subject matter of challenge before the Hon'ble Supreme Court by the Revenue in Civil Appeal No. 9725/2003 disposed on 2-12-04 and Appellant's grievance considered by ld. Commissioner (Appeals) in accordance with the Circular No. 802/35/2004-CX, dated 8-12-2004, the whole controversy could have been resolved. Also according to him, the Circular having stated clearly the position that all pre-deposit should be returned within three months from the date of order passed by the Appellate Tribunal/Court or other Final Authority, there shall not be liability for payment of interest if refund is made duly....

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....from which the Appellant was entitled to claim interest on refund that was ultimately settled by the Tribunal's order dated 6-12- 01. The Tribunal observed in Para 3 of the order that interest was claimed by the Applicant on the basis of provisions contained under Section 11BB of Central Excise Act, 1944. In part 4, the Tribunal categorically held that the Applicant was justified in contending that interest due to it was to be calculated on the basis of its Application filed on 5-2-98. Taking such observation into consideration, in para 5 of the Order, the Tribunal concluded that Revenue should calculate the interest in accordance with law for the relevant period taking into consideration refund Application filed by the Applicant on 5-2-98.....