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TMI Blog2007 (2) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ld. Commissioner (Appeals) has erred to direct refund of the balance interest amount of Rs. 3,65,394/- which was part of the total earlier interest amount of Rs. 4,32,789/- and refund of such amount is covered by limitation as well as in admissibility. Therefore Revenue's appeal be allowed reversing the first appellate order. 2. The ld. Counsel appearing for the Respondent submitted that although neither appeal nor Cross-Objection was filed by the Respondent he has right to assail Revenue's Appeal on the principal ground that there was total disregard by Revenue to the appellate order dated 28-1-2005 and without appeal by Revenue against that order, they have denied Respondent's right to refund which is confiscatory in nature, Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Limited case reported in 1991 (55) E.L.T. 433 (S.C.) and Para 6 of the said judgment reads as under "6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, bypassed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals). Revenue should by no stretch of imagination unsettle the settled position in terms of order dated 30-5-2005. There should have been no controversy as to the refund of the unrealisable interest and they should have acted fairly without any hesitation. He further submitted that failure to carry out order of the ld. Commissioner (Appeals) which was passed on 28-1-2005 has compelled by him to approach the ld. first appellate authority again in appeal case No. C. No. V(2)/XAP-88/BBSR-I/05 which was disposed on 27-2-2006 directing refund of the unrealisable interest amount in compliance to the earlier first appellate direction. Also he submitted that when the Department does not dispute refund of Rs. 67,395/- which was an integral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,32,789/- which was not at all collectible from the assessee, withholding of Rs. 3,65,394/- was uncalled for. In such circumstances, without dilating the matter further, following the ratio laid down by Apex Court in the case of Commissioner of Central Excise, Mumbai v. Bigen industries Limited reported in 2006 (197) E.L.T 305 (S.C.) and Kamalakshi Finance as aforesaid, it can be ordered that the directions made by the ld. Commissioner (Appeals) on 28-1-2005 should be carried out forthwith and also the appellate direction made on 27-2-2006 by the self- same authority be complied with utmost regard. Consequently, Revenue's appeal fails and is dismissed and the first appellate order dated 27-2-2006 is upheld. (Dictated and pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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