TMI Blog2013 (7) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... in restitution – decided against revenue. - GA No.1080 of 2013, APOT No. 174 of 2013, WP No. 883 of 2012 - - - Dated:- 6-5-2013 - Girish Chandra Gupta And Tarun Kumar Das,JJ. For the Appellant : Mr. R. Bharadwaj with Md. Talay Masood Siddiqui, Advocates For the Respondent : Mr. R. K. Chowdhury, Advocate ORDER The Court: This appeal is directed against a judgment and order dated 26th November, 2012 passed by sister Indira Banerjee, J. The operative portion of the judgment is as follows:- The writ application is disposed of by directing the respondent authorities to refund penalty and fine refundable to the petitioner forthwith and in any case within thirty days from the date of communication of the order. The value of the oil shall be assessed at the earliest and in any case within sixty days from the date of communication of this order after giving the petitioner an opportunity of hearing. The petitioner shall be entitled to interest on delayed refund at the rate of 9% per annum from the date of the Appellate Order. Aggrieved by the judgment and order, the Revenue has come up in appeal. Mr. Bharadwaj, learned Advocate appearing in support of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the learned Trial Court erred in directing payment of interest at the rate of 9% per annum. In support of his submission he relied upon a judgment in the case of Union of India Ors. vs. Orient Enterprises Anr., reported in (1998) 3 SCC 501. He drew our attention to paragraph 8 of the said judgment wherein the following views were expressed : In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at the relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve animation. Nevertheless, tax laws have to be interpreted reasonably and in consonance with justice adopting a purposive approach. The contextual meaning has to be ascertained and given effect to. A provision for deduction, exemption or relief should be construed reasonably and in favour of the assessee. The object being that in computation of the net income, the statute provides deductions, exemptions or depreciation of the value of the capital assets from taxable income. Therefore, buildings which have not been specifically defined to include road in the Act must be taken in the legal sense. Mr. Chowdhury, learned Advocate appearing for the writ petitioner/respondent, disputed the submissions advanced by Mr. Bharadwaj. He contended that Section 27A has no manner of application because Section 27A applies to the cases of refund of duty. In the case before us, the refund is on account of penalty and fine wrongfully realised from his client. Therefore, Section 27A or the rates provided under the notification dated 12th September, 2003 shall have no manner of application. The learned Trial Court, after considering the matter, allowed interest at the rate of 9% per annum and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from supporting, militates against the submission of Mr. Bharadwaj. The submission is also contrary to the views expressed by a Division Bench of this Court in the case of Madura Coats Pvt. Ltd. vs. Commissioner of C. Ex., Kolkata-IV, reported in 2012 (285) ELT 188 (Cal) wherein the following views were expressed: The issue before the Supreme Court was whether the pre-deposit made as a pre-condition for the hearing of appeal under the Central Excise Act, 1944 was, on the assessee being ultimately successful, refundable to the assessee with interest as there was no provision in the Central Excise Act for payment of interest on such refund. It is in the course of hearing before the Supreme Court that the Learned Solicitor General after taking instructions made a statement that the Central Board of Excise and Customs proposes to issue a circular in connection with the payment of interest on all such pre-deposits. At the time a draft copy of the proposed circular was handed over to the Supreme Court there was no rate of interest specified in the proposal and, therefore, the Supreme Court awarded interest @ 12% per annum. Therefore, when this Court directed the respondent to pay in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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