TMI Blog2015 (2) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944 on 21.10.2008 before the Asstt. Commissioner and the Asstt. Commissioner vide order-in-original dated 13.01.2009, after appropriating the duty demand of ₹ 11,89,303/- and penalty of same amount and also the penalty of ₹ 2 Lakh each on Shri T.K. Diwan and Shri D.N. Gupta , held that balance amount is refundable. However, on appeal being filed to the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 17.03.2009 held that the duty refund of ₹ 88,72,686/- is not hit by bar of unjust enrichment and ordered its refund along with interest payable under the law. No appeal has been filed by the Department against the Commissioner (Appeals) order dated 17.03.2009. In our view, the letter d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period of dispute they cleared the dutiable goods flush doors and block board in the guise of the exempted goods viz. panel doors and baton doors. The Commissioner vide order-in-original No.4/98 d. 14.01.1998 confirmed the duty demand of ₹ 88,72,686/- and imposed penalty of ₹ 98,72,686/-. However, on appeal being filed to the Tribunal, the Tribunal vide final order no.392/2005-EX dated 20.04.2005 remanded the matter to the Commissioner for de-novo adjudication after supplying non relied upon documents and hearing the appellants. In do novo proceedings, the Commissioner vide order-in-original dated 11.11.2005 confirmed the duty demands of ₹ 88,72,686/- and ₹ 3.5 lakhs against the appellant and imposed penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11 B of the Central Excise Act, 1944 on 21.10.2008. The Asstt. Commissioner vide order-in-original dated 13.01.2009 appropriated an amount of ₹ 27,78,606/- representing the duty demand of ₹ 11,89,303/- confirmed by the Commissioner in de novo proceedings with penalty of equal amount and penalty of ₹ 2 Lakh each on Shri D.N. Gupta and Shri T.K. Diwan, Directors and ordered refund of penalty of ₹ 76,44,080/-. The refund of ₹ 88,72,686/- was refused to the appellant and was ordered to be credited to the Consumer Welfare Fund on the ground that the same is hit by the bar of unjust enrichment. The appellant filed an appeal before the Commissioner (Appeals) against the Asstt. Commissioner s order dated 13.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2009 instead of 21.10.2008. On appeal being filed to the Commissioner (Appeals) the Commissioner (Appeals) vide order-in-appeal dated 6.1.2009 rejected the appeal against which this appeal has been filed. 2. Heard both the sides. 3. Shri Rajesh Rawal, Advocate, ld. Counsel for the appellant, pleaded that the dispute in this appeal is only about interest payable to the appellant for delay in refund of duty of ₹ 88,72,686/-, that this amount is part of the amount of ₹ 1,92,95,372/- paid on 1.9.2006 as pre-deposit for compliance with the provisions of Section 35 F of the Central Excise Act, 1944, that when on de novo adjudication by the Commissioner in pursuance of the Tribunal s Final Order dated 2.5.2008, the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant on 01.09.2006 had paid an amount of ₹ 1,92,95,372/- towards their duty liability and penalty under TR-6 challan. When in pursuance of the Tribunal s Final Order dated 2.5.2008, the matter was adjudicated de novo by the Commissioner vide order-in-original dated 17.10.2008, the appellant company s duty liability was determined as ₹ 11,89,303/- with equal amount of penalty under Rule 173 Q (1). The appellant filed a refund application under Section 11 B of the Central Excise Act, 1944 on 21.10.2008 before the Asstt. Commissioner and the Asstt. Commissioner vide order-in-original dated 13.01.2009, after appropriating the duty demand of ₹ 11,89,303/- and penalty of same amount and also the penalty of ₹ 2 Lakh each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund and interest on the same for the period of delay cannot be re-adjudicated and in this regard, the Asstt. Commissioners order as well as Commissioner (Appeals) treating the appellants reminder letter dated 30.03.2009 as refund application and on this basis, refusing the interest on the ground that the refund of ₹ 88,72,686/- was paid within three months, is totally wrong. We are of the view that since refund application had been filed on 21.10.2008, the interest on the amount of ₹ 88,72,686/- would be payable for the period of delay starting from the date immediately after the date on which the period of 3 months expired. The judgment of the Apex Court in case of CCE, Hyderabad vs. ITC Limited reported in 2005 (175) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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