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TMI Blog2017 (2) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... g to failure in crossing the hurdle of unjust enrichment and had not entertained the claim for interest. The events leading to this appeal will bear recording owing to the peculiarities of the dispute before us. 2. The dispute had its genesis in valuation of photographic printing paper manufactured by M/s New India Industries Ltd which was distributed through the appellant leading to confirmation of demand of duty by order dated 13th December 1974, on the value at which appellant sold the goods to their dealers. Between 1st March 1974 and 31st October 1984, M/s New India Industries paid duty on this value under protest and, following the decision of the Hon'ble Supreme Court in re Bombay Tyres International [1984 (17) ELT 329 (SC)], valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust enrichment which was, however, not done and amount released to appellant by order dated 31st October 1997, which upon being upheld by first appellate authority, was carried to the Tribunal with the latter ordering payment along with interest at 12% from the date on which the amount was withdrawn from the court by the department. With the writ petition filed before the Hon'ble High Court being directed to be withdrawn to enable filing of Civil Appeal before the Hon'ble Supreme Court, and appeal having been filed. Civil Appeal was allowed by the Hon'ble Supreme Court on 18th March 2004 setting aside the order of the Tribunal. The original authority narrated all these facts and in disposing off the refund claim of 9th May 1997, sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igibility for refund which may have required him to consider the correctness of the order of the original authority in transferring the amount to the Fund. It was contended that this transfer to the Fund was not contested either by them or by Revenue and, thereby, requiring the impugned order to be set aside for having travelled beyond the contents of the appeal. Referring to section 11BB, the appellant claims interest on the refund from date of withdrawal from the Court till date of transfer to the Fund. 7. We have heard Learned Authorized Representative at length. None appeared for appellant. 8. The first issue that arises for consideration is the prayer to set aside the impugned order for having rendered a decision that was not in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be challenged. Consequently, we do not concur with appellant that the impugned order deserves to be set aside for the alleged solecism. 9. Turning to the claim of appellant that section 11BB of Central Excise Act, 1944 entitles them, as applicant, for interest on the amount withheld as refund till date of transfer to Fund, we notice that the Hon'ble Supreme Court has held the appellant to be ineligible for the refund. The original authority, for reasons best known to him, has found it necessary to pass an order in a show cause notice which already stood decided. Whether the notice, limited to the issue of unjust enrichment, could settle the issue of limitation is not relevant; the highest court in the land has held the claim to be inelig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation. Where any order of refund is made by the Commissioner (Appeals). Appellate Tribunal National Tax Tribunal or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section." is unambiguously clear in that it is liable to be invoked only when three months ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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