1985 (7) TMI 114

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....rical energy in the State of Karnataka is the petitioner before me. From January, 1981 to December, 1982, the petitioner generated and supplied various quantities of electrical energy for agricultural purposes in the State on which also, it had paid a sum of Rs. 2,02,90,938.44 or so to the Union Government as excise duty under the Central Excises and Salt Act, 1944 (Central Act No. 1 of 1944) ("the Act") though payment of such duty was exempted by Government. 3. Sometime in 1984 or earlier, the petitioner made an application before the Assistant Collector of Central Excise, Lalbagh Division, Bangalore ("Assistant Collector") for refund of the whole of the excise duty paid on the electricity generated and supplied for agricultural purpose....

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....tion seeking for a writ in the nature of mandamus to the Assistant Collector who is again resisting the same on more than one ground. 5. Shri C.R. Sridhar, learned counsel for the petitioner, contends that so long as the appellate order made by the Collector was in force, his client had a legal right for payment of the refunds and the Assistant Collector had a corresponding legal duty to refund the amounts without procrastinating and concerning himself with the appeal filed by the Revenue before the Tribunal and therefore, the Assistant Collector should be directed to refund the amounts with interest thereon at the bank rate as was done by the Supreme Court in Elpro International Limited, and Others v. Joint Secretary, Government of Indi....

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.... an order made by a superior authority like the Tribunal prevented him from implementing the same. 8. The Act, in particular Section 35F on which reliance is placed by Shri Bhat, nowhere provides for not implementing a lawful appellate order on the ground that the Revenue proposes to file an appeal or had actually filed an appeal before the Tribunal. In the absence of a statutory provision which expressly provides for non-implementation of the order of the Collector till the second appeal filed by the Revenue is heard and disposed of by the Tribunal, the Assistant Collector is in duty bound to implement the order of the Collector. So long as the order of the Collector is in force, the petitioner has a legal right to claim for its impleme....