TMI Blog2006 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2 Being aggrieved by the aforesaid order, the petitioner had preferred an appeal before the Commissioner (Appeals), Mumbai, who remanded the matter for de novo consideration to the Asst. Commissioner. After hearing the petitioner, the Asst. Commissioner of Central Excise Customs, Div. IV, Vadodara again rejected the applications and, therefore, the petitioner again preferred an appeal before the Commissioner (Appeals). The said appeal was also dismissed by an order dated 31.8.98. Being aggrieved by the aforesaid order, the petitioner preferred an appeal before the CEGAT, Mumbai, and the said appeal had been allowed by an order dated 25.11.2003. By virtue of the said order passed by the Tribunal, the orders passed by the Asst. Commissioner, Central Excise Customs dated 21.5.96 and confirmed by the Commissioner (Appeals), Mumbai, dated 31.8.1998 had been quashed and set aside and the Tribunal had directed that the amount of refund claimed by the petitioner under the provisions of Rule 173L of the Rules should be paid to the appellant without any delay. 3. The petitioner has approached this court with a prayer that the respondent authorities be directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to him, as the said prayer had not been expressly granted by the Tribunal, the petitioner is not entitled to any amount of interest and as the refund has already been paid on 27.8.2004, the petition should be dismissed. 6. So as to substantiate his case, learned Asst. Solicitor General has relied upon the judgment delivered in the case of Padmanabh Silk Mills v. Union of India , 2006 (193) ELT 536 (Guj.) 7. We have heard the learned advocates at length and have also considered the judgments cited by them. 8. Upon hearing the learned advocates and looking to the provisions of sec. 11BB of the Act, in our opinion, the petitioner cannot be deprived of the interest on the amount of refund, which he is entitled to. 9. It is not in dispute that the amount of refund has been paid after the order of the Tribunal had been passed, but no amount of interest has been paid thereon. It is also not in dispute that the petitioner was entitled to refund of duty, which it paid earlier. The applications for refund submitted by the petitioner, though had been initially rejected, were finally granted by the Tribunal as it came to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation :- Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise or Deputy 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. Looking to the aforesaid explanation, the order which had been passed by the Tribunal should be treated as if it had been passed under sec. 11B(2) of the Act. In the instant case, the Asst. Commissioner, Central Excise Customs, as well as the Commissioner (Appeals) had rejected the applications submitted by the petitioner for refund. The Tribunal came to the conclusion that rejection of the applications was improper and the petitioner was entitled to the refund of duty paid by it and the said order of the Tribunal has attained finality. This would clearly denote that the Tribunal found the order of the two lower authorities incorrect and, therefore, the petitioner had a right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2004 and thereafter trade notice has been issued by the department to the effect that even when the deposit is to be returned to the assessee, interest should be paid thereon. A Trade Notice dated 8.12.2004 had been issued because in many cases even while returning the amount of deposit, delay was being caused by the authorities. Para 5 of the said notice clearly denotes that delay beyond the period of 3 months should be viewed adversely and appropriate disciplinary action should be initiated against the concerned defaulting officers. It further warns that all concerned officers that default entails an interest liability and if such liability occurs by reason of any order of CESTAT or a court, such orders should be complied with and the amount of interest should be recovered from the concerned officer. 15. In our opinion, the aforestated view of the respondent authorities is absolutely justified because, on account of default committed by an officer of the government, the state exchequer should not suffer. 16. The observations made in the judgment cited by learned advocate Shri Dave in the case of Sandvik Asia Ltd. (supra) clearly denote that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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