TaxTMI 
TaxTMI 
2004 (10) TMI 108
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....al and Stay Application before CEGAT wherein common stay order dated 22-9-1992 was passed by the CEGAT directing the petitioner firm to deposit Rs. 4 lakhs in cash as condition for hearing of Appeal on merits (Annexure-A). Accordingly, the petitioner had deposited Rs. 4 lakhs by way of pre-deposit before the concerned Authority. Thereafter, the Appeal of the petitioner was finally allowed by CEGAT and the impugned order of duty and penalty imposed on the petitioner firm by the Commissioner, Central Excise & Customs, Vadodara was quashed and set aside, vide order dated 5-8-1996. 3.Thereafter, on 22-11-1996, the petitioners filed refund claim (Annexure-B collectively) before the Assistant Commissioner Central Excise, Div. IV Surat. It is the case of the petitioners that their refund claim Application was not decided by the respondents on the ground that they wanted to approach this Court. Therefore, the petitioners were constrained to approach this Court by way of Special Civil Application No. 5027/97 which was disposed of on 6-10-1997 (Annexure-C) by the Division Bench of this Court, directing the respondents to decide their refund claim Application, in accordance with law, within ....
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....5F of the Central Excise Act and when their Appeals were allowed by the Appellate Authority then they were required to refund the amount of pre-deposit immediately. Instead of that, the Authority waited for a period of almost 3 years and finally refund the amount which was deposited by them by way of pre-deposit. He, therefore, submitted that irrespective of the provision of Section 11BB, the petitioners were even otherwise entitled for the interest of almost 3 years on belated refund. In support of his submission Shri Dave placed reliance on the Judgment of Madras High Court in the case of Oswal Agro Mills Ltd. v. Union of India, reported in 2000 (115) E.L.T. 302 (Mad.), which is annexed to this petition at Annexure : K. It is a Judgment of the Single Judge of Madras High Court, delivered in writ petition filed by the petitioner claiming refund of Rs. 12.5 lakhs u/s. 129E of the Customs Act and also for releasing the Bank Guarantee of Rs. 12.5 lakhs. Having carefully gone through the Judgment of the Madras High Court in Oswal Agro Mills Ltd. (supra), it appears that the order passed against the petitioner was set aside by the CEGAT. Therefore, the learned Single Judge of the Madra....
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....xtiles Ltd. v. UOI reported in 2000 (119) E.L.T. 279 (M.P.) = 2000 (90) ECR 452 (M.P.), wherein notwithstanding the order of refund made by the Appellate Authority, the respondents were not refunding the amount till 12-4-1989, the day on which the cheque for refund amount was given. It appears from the Judgment of the learned Single Judge of M.P. High Court in Hope Textiles (supra) that reliance was placed on the Supreme Court Judgment in the case of Elpro International Ltd. & Ors. v. Joint Secretary, Government of India, reported in 1985 (19) E.L.T. 3 (S.C.) wherein the Apex Court held that "Since in the instant case, excise duty was wrongly collected in 1966 and, the amount was refunded in May, 1977, therefore, it will neither be harsh nor unjust if an amount of Rs. 50,000/- is paid by the Union to the Respondent-company on account of such interest together with the amount of costs." Accordingly, the petition was allowed with 12% interest on the refund claim. 9. Shri Dave then relied on the larger Bench Judgment of the Tribunal itself in the case of Arti Steel Ltd. v. Commissioner of C.Ex. Chandigarh, reported in 2003 (155) E.L.T. 189 (Tri. - LB). The Question before the larger ....
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....ication till the date of refund of such duty : Provided that where any duty ordered to be refunded under sub-section (2) of Section 11B 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 or Deputy Commissioner of Central Excise), under sub-section (2) of Section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purpose of this section. SECTION 11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the (Assistant Commissioner of Central Excise or Deputy Commissioner of Centr....
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....ncidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. 11.From the above, it is clear that u/s. 11B(2) of the Central Excise Act, 1944, on making an Application for refund u/s. 11B(2) the concerned Authority must be satisfied that whole or part of any duty of excise paid by the applicant is refundable or not and on he being satisfied, he has to pass order accordingly and the amount so determined shall have to be credited to the fund subject to the provision of Section 11(2). If there is a delay of refund then interest has to be awarded u/s. 11BB of the Act. Thus, from the bare reading of Sections 11B(2) and 11BB of the Act, it is clear that if the concerned Authority satisfied with the case of the applicant of refund then it is to be paid within 3 months from the date o....