TMI Blog2008 (7) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... J.C. Patel, Advocate, for the Appellant. Ms. M.I.J. Micheal, JCDR, for the Respondent. [Order]. - This appeal is directed against the order of the Commissioner (Appeals) wherein she allowed the claim for interest on the refund because of delay from the date immediately after expiry of three months from the date of receipt of the order of the Tribunal till the date of actual payment of refund to the appellant. 2. The facts of the case are discussed in brief. 2.1 An adjudication order vide OIO No. 19/MP/87, dated 14-8-87 was passed holding that appellant had effected clearances of finished goods in excess of exemption limit as provided under the relevant SSI Notification during 1984-85 and 1985-86 confirming demand of duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Hon'ble Supreme Court in Sandvik Asia Ltd. v. CCE , 2006 (196) E.L.T. 257 (S.C.) = 2007 (8) S.T.R. 193 (S.C.), in support of his contention that interest is payable from the date of payment by the appellant. He also cited several other decisions in support of his arguments which will be discussed subsequently. Learned Jt.CDR on behalf of the Revenue, stated that refund is payable only after the matter was finally decided by the Tribunal and refund claim was filed in terms of order of the Tribunal. Therefore, the decision of the Commissioner (Appeals) that interest is payable from a date after three months from the date of receipt of the final order of the Tribunal is legally correct and may be upheld. 4. I have considered the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it then stood and on the peculiar facts and circumstances of each case. When a specific provision has been made under the statute, such provision has to govern the field. Therefore, the Court has to take all relevant factors into consideration while awarding the rate of interest on the compensation." 6. The above observations of Hon'ble Supreme Court make it clear that if there is a specific provision under a statute, such provision has to govern the field. In this case, there is no dispute that the amount was paid by the appellant before issue of show cause notice and that was paid as Central Excise duty only. In fact, it is found from the challan that head of account has been shown as "038-Union Excise Duties". It is also noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Notification No. 30/91-N.T., dated 19-9-91. Therefore, after this date, there would be no right to suo motu refund. Interest on delayed refund is dealt with under Section 11BB which was incorporated in the law w.e.f. 26-5-95. Section 11BB is reproduced below for ready reference. "11BB. Interest on delayed refunds.- If any duty ordered to be refunded under sub-section (2) of Section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, (not below 5%) and not exceeding 30% per annum as is for the time being fixed (by the Central Govt., by Notification in the Official Gazette), on such duty from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not confirm that a refund application was made earlier. There cannot be any claim for interest in the absence of filing refund claim as per Statute and the statute is binding as ruled by the Hon'ble Apex Court in Sandvik Asia Ltd. case ibid. 11. The learned advocate has cited several decisions in support of his arguments. The first decision in case of Sandvik Asia Ltd. has already been discussed and in fact this judgment related to refund claim filed for the years 1977-78, 1978-79 and Hon'ble Supreme Court has clearly observed that it is subject to statutory provisions. I have also discussed the statutory provision above and my conclusion is based on the statutory provisions. However, before concluding one way or the other, the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers to the Circular. The circular issued by the Board in 2004 also provides for interest on delayed refund of pre-deposit. Even if it is assumed that the amount deposited by the appellants was pre-deposit, the interest has to be allowed as per statutory provisions only. If the statute is not applicable, the remedy would be filing a civil suit or approach the High Court with a writ petition since the Tribunal being the creation of statute cannot be beyond the statute. However, as held by Hon'ble Supreme Court, beneficial circulars issued by CBE C have to be implemented and therefore refund and interest on delayed refunds have to be considered under Section 11B and Section 11BB of CEA, 1944. Therefore, whether the amounts deposited by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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