2005 (1) TMI 135

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.... by the Department and get duly encashed; that the Department wrote a large number of letters to them for charging interest @ 25% per annum for the period running from the date of submission of cheque to the date of encashment of cheque; that they were left with no option but to pay interest amounting to  Rs. 30,49,873/- during the period from July, 1997 to September, 1999; that since the interest was recovered by the Department without authority of law they filed an application dated 30-7-2001 for refund; that the Asstt. Commissioner under Order-in-Original No. 216/2001, dated 31-12-2001 rejected their refund claim on the ground that the Appellants have failed to produce any evidence that burden of the said amount has not been passed ....

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....d under the normal law. 3. Countering the arguments Shri A.S. Bedi, learned SDR, submitted that if interest has been paid by them wrongly and it is not the duty there is no provision in the Central Excise Act and Rules for refunding the same; that the provision for refund are contained only in Section 11B of the Central Excise Act which at the relevant time provided that the claim for refund has to be filed within 6 months from the relevant date; that in the present matter the interest was paid during the period 1997-1999 whereas the claim for refund has been filed in July, 2001 which is beyond the period of 6 months specified in Section 11B of the Act; that it has been held by the Supreme Court in the case of Miles India Ltd. v. A.C.C. ....

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....ch of the Supreme Court in the case of Mafatlal Industries v. UOI - 1997 (89) E.L.T. 247 (S.C.) that where any provision under which duty is levied is found to be unconstitutional, the person who paid the tax is entitled to claim refund and such a claim cannot be governed by the provisions of Section 11B of the Act. The Supreme Court has, further, held that in case of unconstitutional levy it is open to the person claiming refund to either file a suit for recovery of tax collected from him or to file a writ petition under Article 226 of the Constitution for appropriate direction of refund. If the Appellants have chosen to claim the refund of interest amount paid by them under the Central Excise Act the only provision dealing with the refund....