TMI Blog2010 (3) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of Rs. 4,29,985/- Rs. 2,23,245/- towards duty and Rs. 2,06,740/- towards interest). Aggrieved by such an order, Revenue filed an appeal before the ld. Commissioner (Appeals). Ld. Commissioner(Appeals) upheld the Order-in-Original. Hence this appeal. Held that- assessee was entitled to its refund even before provision to that effect was introduced w.e.f. 10.05.2008. it was more so as there was no evidence that it was actually payable by assessee, and Revenue could not retain amount collected by them without authority of law. - E/143/2009 - 649/2010 - Dated:- 29-3-2010 - Shri M.V. Ravindran, Member (J) REPRESENTED BY: Shri M.M. Ravi Rajendran, JDR, for the Appellant. <?xml:namespace prefix = st2 /> Shri I. Venkaia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 11B of the Central Excise Act, 1944 prior to 10-5-2008. He would rely upon the grounds of appeal, which are reproduced herein below:- (i) the Case Law viz. Mothersons Sumi Systems Ltd. v. CCE, Noida (2007 (208) E.L.T. 209 (Tri. -Del) = 2007 (5) S.T.R. 16 (Tribunal) of the Principal Bench of the Hon'ble CESTAT, New Delhi cited by the Commissioner (Appeals) is not applicable in this case. In the instant case, M/s. Kernex Microsystems (India) Ltd. had paid the duties themselves and contended that the department has wrongly collected the amounts claimed refund of excess duty paid along with interest. They can not claim interest as the duties were paid by them voluntarily and grant of refund has to be within Section 11B Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arose as the Respondents had inadvertently paid relevant duties along with interest at the time of de-bonding of certain capital goods without realizing that the said goods were entitled to 100% depreciation. Hence, they sought the re fund of duties and interest paid by them, which was granted by the lower authority vide the impugned order. The department is now questioning the refund of interest on the ground that Section 11B (I) of the Act, ibid was amended to include refund of interest only w.e.f. 10-5-2008. It is true that the provisions of Section 11B of the Act were made more explicit providing. for refund of interest along with the duties, after the amendment. However, it is wrong to infer that the said Section barred the refund o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as excess payment was claimed as a refund. I find that the id. Commissioner(Appeals) has correctly relied upon the decision of the Tribunal in the case of Mothersons Sumi Systems Ltd. (supra). It can be also seen from the grounds of appeal of the Department that there is no evidence to indicate that the amount which has been paid by the respondent was in fact payable by them. It is settled law, that, if any amount is not payable under authority of law, such amount cannot be retained by the authorities. In view of these foregoing findings, I find that the impugned order is correct and legal and does not suffer from any infirmity. Accordingly, the appeal filed by the Revenue is rejected and impugned order is upheld. (Pronounced in court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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