TMI Blog2013 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before the first appellate tribunal. The first appellate authority after following the due process of law, set aside the impugned order and directed the lower authorities to pay interest on belated payment of interest to the assessee – Held that:- The ratio of Larger Bench judgment in the case of Sun Pharmaceuticals Industries Ltd. [2005 (5) TMI 90 - CESTAT, NEW DELHI] - the legislature thought it fit not to provide for any interest on interest even in case of delay in payment of interest on refund amount. To read the liability to pay interest on interest in the provisions of law contained in Section 11BB of the Act, would virtually amount to legislate upon the Act and that is not the function of the Tribunal which is creation under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rief facts of the case in brief are that the appellant opted for SSI exemption w.e.f.10.07.94 and paid concessional rate of duty under Notification No.1/93-CE dated 28.2.03, which was objected by the department that the concessional benefits under the said notification cannot be opted at any time in the middle of the year as they were paying full rate of duty. The appellant paid the differential duty amounting to Rs.7,21,793/-under protest. The appellant filed the refund claim of the duty paid subsequently. The appellant's claim of refund was rejected by the JAC vide OIO No.52/REFUND/96 dated 17.09.96. In appeal, the Commissioner (Appeals) directed the JAC to re-determine the amount. The JAC re-adjudicated the case and rejected the refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. The first appellate authority after following the due process of law, set aside the impugned order and directed the lower authorities to pay interest on belated payment of interest to the assessee. 4. None appears on behalf of the respondent despite notice. I find that the matter was listed for disposal on 23.01.13 and 15.03.13 on which dates none appeared. Notices intimating the hearing of appeal today were sent to the assessee on the given addresses. Since the issue involved lies in a narrow compass, I take up the appeal for disposal in the absence of any representation from the assessee. 5. Ld. D.R. would take me through the facts of the case and order-in-appeal. He would then submit that the issue is now settled by the Larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a decision of the Court in favour of the assessee, the Revenue must compensate the assessee. Section 240 of the Income Tax Act deals with refund on appeal. The expression used therein is refund of any amount. The supreme Court held that the said phrase has to be interpreted in the same manner as under Section 244(1A) of the Income Tax Act, that the expression referred not only to tax, but also to interest. 19. The Supreme Court referred to the decisions in the case of CIT v. Goodyear India Limited [2001] 249 ITR 527, D.J. Works v. Deputy CIT [1992] 195 ITR 227, CIT v. Needle Industries Private Limited [1998] 233 ITR 370 and CIT v. Ambat Echukutty Menon [1988] 173 ITR 581 and rejected the view of the Bombay High Court. The Apex Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed before us that Section 214 of the Income Tax Act relates to the payment of advance tax by an assessee and when the tax so paid had been found to be excess at the time of final assessment that has to be refunded by the department with interest. But no such provision regarding payment of duty in advance by the assessee, exists in the Central Excise Act. Rather duty is payable by an assessee at the time of clearance of the goods from the factory. The Central Excise Act only speaks of provisional assessment under Rule 9B which can be claimed by the assessee or adopted by the deptt., when there is dispute regarding classification of the goods, and the correct Tariff rate of duty leviable on these goods or, where the clearance of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B in 1978. The authorities under the Act have to operate within the four corners of the Act and the Rules made thereunder. Since the Act or the Rules did not provide for grant of interest, the authorities under the Act, including the CEGAT, had no power to award interest. 8. In the light of what has been discussed above, on the basis of the above referred two judgments of the Gujarat High Court, which are under different Tax statute, interest on delayed payment of interest, cannot be held to be permissible under the Central Excise Act and the Rules made thereunder, for want of any specific provision in the Act or the Rules. Therefore, the Tribunal has no power to award such a interest to the assessee. The law laid down in Hindust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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