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2000 (11) TMI 1245

Misc. Petition No. 1005/91 - Dated:- 7-11-2000 - MR. A.M. Sapre, J. For Appellant/Petitioner/Plaintiff: J.P. Gupta, Sr. Adv. and Abhyankar, Adv. For Respondents/Defendant: B.G. Neema, Adv. ORDER A.M. Sapre, J. 1. Petitioner, a limited company, has filed this writ under Articles 226 and 227 of Constitution of India, claiming following relief by way of issuance of writ of mandamus against the respondents:- "The petitioner be awarded interest at the rate of 18% p.a. on amounts illegally realis .....

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ated 1-3-1978. The excise authorities did not accept the stand taken by the petitioner and insisted for payment of excise duty. It is the case of petitioner that due to insistence on the part of excise authorities, the petitioner had to pay excise duty under protest. The petitioner then contested the issue before the departmental authorities and contended interalia that they are not liable to pay any excise duty on these pumps in terms of the aforementioned exemption notification. This issue was .....

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sum of ₹ 1,37,77,570/- by way of interest which was calculated at the rate of 18% per annum on the amount which was refunded but late. 3. Heard Shri J.P. Gupta, learned senior counsel with Shri Abhyankar, learned counsel for petitioner, and Shri B.G. Neema, learned counsel for respondents. 4. Shri Gupta, learned senior counsel relying upon series of cases decided by Supreme Court as also by High Courts cases viz. 1979 ELT (J 181) Vijay Textile v. Union of India High Court, Gujrat 1979 ELT .....

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T 186 Caira District Coop. Milk Producer v. Union of India HC Bombay, 1989 (43) ELT 253 Redihot Electricals v. Union of India HC New Delhi, 1989 ELT 279 Orient Enterprises v. Collector of Customs CEAT New Delhi, 1989 (41) ELT 358 (HC) India Cements Ltd. v. Collector of Customs, Excise, SC, 1989 (44) ELT 423 Shri Virendra Amritlala Thakkar v. Union of India HC All, 1991 (52) ELT 165 Union of India v. Coromadal Prodorites SC Mad. 1991 (51) ELT 214 Sandoz (I) Ltd. v. Union of India HC Bom., 1991 (5 .....

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case where this Court in exercise of its writ jurisdiction under Articles 226 and 227 of Constitution can issue or/and should issue a writ of mandamus and grant a relief of payment of interest in the form of a money decree for ₹ 1,37,77,570/-. 6. In reply, learned counsel for the respondent Shri Neema, Standing counsel for Union of India placing strong reliance on a recent decision rendered by Supreme Court in the case of Union of India v. Orient Enterprises reported in (AIR 1998 SC 1729) .....

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accordingly. 7. The foremost question that falls for consideration in this writ is whether a writ petition under Article 226 of the Constitution of India seeking the relief of payment of interest on delayed refund of the amount paid by the petitioner (assessee) towards the custom duty under protest is maintainable? 8. Having heard the learned counsel for the parties and having analysied the entire senario in the context of the cases cited at the bar and the question posed, I am inclined to acce .....

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has only claimed a relief of interest by way of mandamus. This is what their Lordship ruled:- "The Court has emphasised that there was no legal right in the appellant who had filed the writ petition to claim refund under the relevant statute. In the present case also till the insertion of Section 27A 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 provisions. Act 22 of 1 .....

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sdiction under Article 226 of the Constitution, while setting aside the said orders has directed the refund of the amount so Collected with interest. The direction or payment of interest in these cases was by way of consequential relief alongwith the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the wr .....

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submission of learned counsel for the petitioner was that the decision rendered by the Supreme Court in the case of Orient Enterprises supra is per incurium because according to learned counsel earlier decisions of Supreme Court on this issue where interest was awarded were rendered by larger Bench and secondly, those decisions still hold the filed. I do not agree to this submission. The cases on which reliance was placed by learned counsel for the petitioner was 1985 (19) ELT 3 (SC) and 1989 ( .....

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on which Supreme Court posed in the case of Orient Enterprises. In other words, the decision turned on its own facts. The same is the situation with other case cited i.e. 1989 (41) ELT 338 (SC). This was also a case where a claim was made by the assessee before the departmental authorities for refund of excise duty. So the issue before the authorities was whether assessee is entitled for refund or not? It was being contested by the department that the claim of assessee for refund is barred. It i .....

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need not be dealt with case wise as in my considered view all these cases no longer considered to be good law after the pronouncement of the decision of Supreme Court in the case of Orient Enterprises Case (Supra) and in any event, perusal of these cases also exhibit distinguishing features. 10. Since, admittedly, this is not a petition arising out of a claim of interest claimed on delayed refund made after the insertion of Section 11BB of Section 75 of the Finance Act, 1995 (22 of 1995) in the .....

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