TMI Blog2013 (4) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, that the petitioner had also challenged the order before CESTAT and that the writ petition was on the plea, that petitioner did not expect justice from the Tribunal. - This cannot be a ground to maintain the writ petition. The writ as framed itself was not maintainable in view of the settled law, that it is not open to the party to continue two parallel proceedings, i.e., appeal and writ petition on the same cause of action. Even on merit, the plea raised by petitioner for grant of interest is not sustainable in law, in view of the law laid down by the Honble Supreme Court in the cases of Union of India vs. Shreeji Colour Chem Industries [2008 (9) TMI 12 - SUPREME COURT], and Union of India vs. E.Merck (India) (1994 (12) TMI 95 - SUPREME COURT OF INDIA). - Decided in favor of revenue. - W. P. No. 1359 of 2008 - - - Dated:- 22-3-2013 - Vinod K. Sharma,J. For Petitioner : Mr.T.Ravikumar For Respondents : M/s.Rajnish Pathiyl ORDER M/s.Dollar Company Pvt.Limited / petitioner has invoked the extraordinary equitable jurisdiction of this Court under Article 226 of the Constitution of India with the prayer for issuance of a writ in the nature of Certiorari, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Salt Act, 1944 before the Government of India, which was also rejected vide order dated 21.01.1976. viii) The petitioner, being aggrieved by the order passed by the Government of India, filed W.P.No.4472 of 1976 in this Court, which was dismissed on 22.02.1978. In view of dismissal of writ petition, the Central Excise Department claimed the differential excise duty and raised a demand of Rs.13,052.72 (Rupees Thirteen Thousand Fifty Two and Paise Seventy Two only). The appeal was allowed and the stand of the department, that applying 25% discount after deducting excise duty from the list price, was held to be incorrect. ix) In view of the decision of the Honble Division Bench, the petitioner applied for refund of central excise duty paid as per the departmental formula on 18.04.1986. The Superintendent of Central Excise issued a notice in C.C.No.701/702 of 1987 dated 19.10.1987, holding that the assessable value should be determined only by deducting 25% from the retail price for clearance effected between 01.10.1966 to 30.09.1982 and thereby raised a demand of Rs.3,09,210.99 (Rupees Three Lakhs Nine Thousand Two Hundred Ten and Paise Ninety Nine only). x) The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. It is also pleaded, that the order of the 2nd respondent in denying refund of Rs.7,034/- (Rupees Seven Thousand and Thirty Four only) and Rs.12,380/- (Rupees Twelve Thousand Three Hundred and Eighty only), being time barred under Section 11(B) of the Central Excise Act, 1944, to be erroneous and contrary to the Division Bench judgment. 5. The writ petition is opposed by filing counter, which reads as under: I, R.Arunachalam, aged about 57 years, son of (Late) T.A.Ramalingam working as Assistant Commissioner of Central Excise, Chennai I Commissionerate, 26/1 Mahatma Gandhi Road, Chennai I Commissionerate, Chennai-600 034 do hereby solemnly affirm and sincerely state as follows: 2. I am the Assistant Commissioner of Central Excise, Chennai I Commissionerate, Chennai 34. I am well acquainted with the facts and circumstances of the case and I am filing this affidavit on behalf of Respondent Nos.1 2. 3. I humbly submit that I have read the averments stated in the affidavit in support of the writ petition and deny all the averments stated therein except those that are all specifically admitted hereunder. 4. The petitioner filed the above writ petition for the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance is placed on the Division Bench Judgement of this Hon ble High Court rendered in the case of M/s Nivaran Pharma Pvt Ltd vs. Commissioner of Central Excise, Chennai reported in 2006 (205) E.L.T. 9 (Mad) held that the High Court was absolutely right in dismissing Writ Petition stating that the assessee should have first raised objection before the concerned Departmental authority but given liberty to approach High Court in case of adverse order. 6. The petitioner filed a reply affidavit to the counter. The stand in the rejoinder is that the fact of petitioner having filed statutory appeal before CESTAT was disclosed in the writ petition. It is also submitted, that the matter came up for hearing before the Honble Single Judge on 18.12.2008, it was then brought to the knowledge of the Honble Single Judge, that the final orders were also passed by CESTAT in favour of the writ petitioner ordering refund and holding, that there was no unjust enrichment, as the department had not challenged the order passed in Writ Appeals. 7. It is further submitted, that the Deputy Commissioner granted refund without awarding interest, therefore, the petitioner filed statutory appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain sum of money to B at a particular time, but he pays it after a delay of several years, the result will be that the money remained with A and he would have earned interest thereon by investing it somewhere. Had he paid that amount at the time when it was payable then B would have invested it somewhere and earned interest thereon. Hence, if a person has illegally retained some amount of money then he should ordinarily be directed to pay not only the principal amount but also the interest earned thereon. 35. Money doubles every six years (because of compound interest). Rs. hundred in the year 1990 would become Rs. two hundred in the year 1996 and it will become Rs. 400 in the year 2002. Hence, if A had to pay B a sum of rupees 100 in the year 1990 and he pays that amount only in the year 2002, the result will be that A has pocketed Rs. 300 with himself. This clearly cannot be justified because had he paid that amount to B in the year 1990, B would be having Rs. 400 in the year 2002 instead of having only Rs. 100/-. Hence, ordinarily interest should always be awarded whenever any amount is detained or realized by someone, otherwise the person receiving the amount after consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CESTAT is not maintainable in the present because the earlier application was dismissed and the Tribunal had held that no new facts have come into existence and that the applicants ought to have approached the department for interest and on department denying the same, should have obtained an order which would have been appealable order and thereafter should have followed the procedure for filing appeal against the denial of interest. 31. Coming to the crux of the matter, what is required to be seen is that the petitioners filed application for refund on 30.12.1999; on the said application, an order was passed on 21.12.2001, whereby the department admitted the refund, but transferred the amount to Consumer Welfare Fund; being aggrieved by that order, the petitioners filed an appeal before the Commissioner (Appeals), which was allowed by order dated 01.10.2003 holding that there was no unjust enrichment on the part of the petitioners; against this order, the department filed an appeal before the CESTAT; in the said appeal, the petitioners filed cross objections; the CESTAT by order dated 12.1.2005 dismissed the appeal filed by the department and allowed the cross-objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of refund. It is paid only up to the date of the regular assessment. No interest is at all paid on excess amount of tax collected by deduction at source. Before introduction of Section 244(1-A) the assessee was not entitled to get any interest from the date of payment of tax up to the date of the order as a result of which excess realisation of tax became refundable. Interest under Section 243 or Section 244 was payable only when the refund was not made within the stipulated period up to the date of refund. But, if the assessment order was reduced in appeal, no interest was payable from the date of payment of tax pursuant to the assessment order to the date of the appellate order. 59. Therefore, interpretation of Section 214 or any other section of the Act should not be made on the assumption that interest has to be paid whenever an amount which has been retained by the tax authority in exercise of statutory power becomes refundable as a result of any subsequent proceeding" 8. In Clariant International Ltd. v. Securities and Exchange Board of India [2004(8) SCC 524] it was observed as follows: "30. Interest can be awarded in terms of an agreement or statutory provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order, deserves to be depreciated. It is settled law, that no notice of alleged oral observations can be taken. It cannot be believed, that the Honble Single Judge would have allowed the petitioner to continue with the proceedings, inspite of knowing, that the impugned order challenged in the writ petition stood set aside, and the writ petition was rendered infructuous. It was open to petitioner to amend the writ petition to challenge the order of CESTAT. It was not open to petitioner to continue with the writ petition to claim relief, which was not subject matter of writ and qua which there was no foundation laid in the affidavit. 23. It is well settled law, that no relief can be granted, which is not claimed and qua which there is no pleadings in the affidavit to support the prayer made. 24. It is not understood how altogether a new case can be set up in rejoinder based on additional set of papers. Only those typeset of papers can be taken note of, which form part of pleadings, as the Court is to decide the case on the basis of pleadings set out in the writ petition, and not on the typeset of papers or additional typeset of papers as is sought to be projected by petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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