TMI Blog2018 (12) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner/appellant had filed the said writ petition praying for the issuance of a writ of certiorarified mandamus to call for the records relating to the order of the second respondent dated 23.01.2007 in Appeal Nos.14 15/2007, to quash the same, with the consequential direction directing the respondents to refund a sum of ₹ 60,108.72/- with interest and also to pass such further orders as deem fit and appropriate by this Court. 2.The writ petition was entertained and during the pendency of the writ petition, a principal sum of ₹ 59,374/- was paid to the writ petitioner/appellant by the respondents/revenue. 3.A learned Single Judge of this Court, after taking note of the submissions and the materials placed, observed that though the writ petitioner/appellant made a challenge to the order of the Central Excise in Appeal Nos.14 15/2007 (M-1) dated 23.01.2007, had brought to the knowledge of this Court through the counter affidavit filed by the revenue, the impugned order which is the subject matter in the writ petition had already been stands set aside in the appeal and despite the said order, the writ petitioner did not chose to challenge the order in, non grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been found in the order in allowing the Writ Petition. 10.It is brought to the knowledge of this Court that the judgments passed in both the Writ Appeals had reached finality, as no further challenge has been made. 11.The appellant herein, prayed for refund of claim for a sum of ₹ 68,048.28/- and the Assistant Collector of Central Excise Madras IV Division, Madras vide order dated 07.10.1988 and rejected the same and it is already stated the said order has been set aside, vide order dated 21.04.1988 in W.P.No.13775 of 1988 which was confirmed in the judgment dated 05.11.2004 in W.A.No.647 of 1999. 12.The learned counsel for the appellant has drawn the attention of this Court to the inner page No.3 of the said order and would submit that the written demand as to the interest @17% has also been extracted in the said order therefore, it is not open to the respondent/revenue to contend that there was no written demand for payment of the interest on the refund of claim. 13.It is the further submissions of the learned counsel appearing for the appellant/writ petitioner, in the light of the judgements passed in both Writ Appeals which had reached finality that, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 26.08.1995. Thus, the Commissioner hold that the appellants therein are eligible to claim interest on the delayed refunds under Section 11BB of the Central Excise Act, 1944 at prescribed rate for period commencing from the date of expiry of three months from 26.05.1995, till the date the amount is issued to the appellants. 17.In so far as the above finding made by the Commissioner of Central Excise (Appeals) is concerned, the learned Single Judge of this Court in W.P.No.1359 of 2008, despite very same challenge being made, has held that writ petition is not maintainable and in paragraph No.27 of the order, the learned Judge has held that the petitioner had disclosed the said fact in the writ petition and also entitled to take note of the subsequent developments. 18.The learned counsel for the appellant has invited the attention of this Court to the judgments reported in Commr. Of C.Ex., Mumbai v. BOC (I) Ltd., (2008 (226) E.L.T.323 (S.C)) and in Union of India v. Shreeji Colour Chem Industries (2008 (230) E.L.T.199 (S.C.)) and would submit that as per the propositions laid down in the said judgments, interest is not a penalty or punishment at all but it is a nominal ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weeks from the date of receipt of a copy of that order. As against the said order, the respondents/revenue filed an appeal in W.A.No.647 of 1999 before a Division Bench of this Court. On 05.1.2004, the Division Bench of this Court has dismissed the writ appeal. But however, the respondents/revenue did not chose to refund the amount to the writ petitioner/appellant but, only during the pendency of the writ petition in W.P.No.1359 of 2008, on 07.09.2009, the respondent/revenue has paid the principal amount of ₹ 59,374/-. 23.The submission made by the learned standing counsel for the respondents/revenue that the definition of 'debt' as defined under Section 2(c) of the Interest Act would not cover the belated payment of interest and the considered opinion of this Court is unsustainable for the reason that the judgments of the Apex Court in Commr. Of C.Ex., Mumbai v. BOC (I) Ltd., (cited supra) and in Union of India v. Shreeji Colour Chem Industries (cited supra) would say that interest not a penalty or punishment and it is only a normal accretion of fact. A specific request for interest has also been made by the appellant and the said fact has been recorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances justifying exercise of such equitable jurisdiction. [ See Municipal Corporation of Delhi vs. Sushila Devi (Smt.) and Others (1999) 4 SCC 317 Para 16] 27.Similarly, in Union of India vs. E.Merck (India) 1998(97) ELT 219 (SC), it was held that in the absence of any statutory provisions of law, claim for interest is not maintainable. In the considered opinion of this Court, the said judgments have no application to the case on hand, for the reason that the concerned authorities, as extracted in the earlier paragraphs, had ordered refund of principal amount as well as interest also for a particular period and the respondents/revenue being a party to the same proceedings have not chosen to make to challenge the said order and therefore, the said order has become final and the respondents/revenue is bound to pay the interest to the writ petitioner/appellant. 28.Admittedly, the respondents/revenue have refunded a sum of ₹ 59,374/- only on 07.09.2009, despite the order passed by the Commissioner (Appeals) not to chosen to pay the interest, this Court has also observed that the definition of 'debt' under the Interest Act, covered the present event also. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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