TMI Blog2008 (7) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... o loss. - 4422 of 2008 - - - Dated:- 23-7-2008 - D.A. Mehta and H.N. Devani, JJ. Shri Paresh M. Dave, for the Petitioner. S/Shri R.M. Chhaya and Harin P. Raval, for the Respondent. [Judgment per : D.A. Mehta, J. (Oral)]. - Considering scope of controversy the petition is taken up for final hearing and disposal. RULE. Learned counsel for the respondents is directed to waive service. 2. The petitioner has preferred this petition praying for following reliefs: "13. In the above premises, the petitioners most respectfully pray as under:- A. That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, quashing and setting aside decision of the second respondent conveyed to the petitioners vide letter F. No. V/Misc-4/2003-R dated 29-2-2008 (Annexure-'H') thereby directing the second respondent to forthwith return amount of Rs. 7.50 lakhs to the petitioners; B. That Your Lordships may be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, direction or order, directing respondent No. 2 to pay compensation by way of interest at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of Rs. 7.5 lakhs got illegally paid by the DGCEI officers to the credit of the Central Govt. is held to be illegal and improper. The Asstt. Commissioner should pay back the amount of Rs. 7.5 lakhs to the appellant by endorsing appropriately on the body of TR-6 challans without further loss of time. 17. However, when sum so paid is not being considered as central excise duty or customs duty or inadmissible drawback amount, then in such a case, there is no scope for paying any Interest to the appellant. The provisions of Section 11BB of the Act and Section 27(A) of the Customs Act etc. are not attracted in the facts and circumstances of the case. The appeal is accordingly hereby allowed in full, in above terms." 6. The respondent authority carried the matter in appeal before Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad (the Tribunal) against the order made by the Commissioner (Appeals). The Tribunal upheld the order made by the Commissioner (Appeals) by observing as under: "Admittedly, the amount in question was deposited in 2001 and for more than a period of 4 years, even the proceedings to confirm the said amount deposited by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that this office is not a proper office to process the same, therefore, you are requested to approach the concerned customs authorities for refund of the said amount. Yours Sincerely, Sd/- (J.S. Dongre) Assistant Commissioner, Central Excise Division-IV, Ahmedabad-I. Copy to: Joint Commissioner (Audit) Central Excise, Ahmedabad-I. With reference to their letter F. No.VI/10-94/IA/Pre-2007 dated 28-2-2008, for information please." 9. Hence, the petition. Upon notice having been issued on 14-3-2008 making the same returnable on 8-4-2008, the respondent has filed affidavit-in-reply dated 7-4-2008 and annexed thereto one final order sanctioning refund which bears the date of order as 29-1-2008 and date of issue as 31-3-2008. 10. Learned advocate for the petitioner has submitted that in the facts and circumstances of the case the petitioner is entitled to interest as prayed for right from 10-8-2001. Alternatively, it was submitted that at least from the date of order of the Commissioner (Appeals) viz. 31-5-2007 the petitioner should be granted interest as the funds have been retained and utilized by the respondents without authority of law. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter was carried before the Tribunal it was the respondent authority who was the appellant through the Commissioner of Central Excise, Ahmedabad-I. In these circumstances, the stand of the respondent authority as noted in communication dated 29-2-2008 is not only incorrect but downright dishonest. There was no question of the respondent authority asking the petitioner that the petitioner should approach the concerned customs authority for refund of the amount. If the respondent authority had a bona fide belief the petitioner ought to have been informed immediately on receipt of the refund application in March, 2005 that the respondent was not the proper authority for entertaining the claim of refund. Instead of that even on 19-4-2007 the petitioner was only informed that the claim being premature the original claim papers were being returned. At the same time it was the Central Excise Department which filed the appeal before CESTAT challenging order of the Commissioner (Appeals). 15. The aforesaid facts are narrated only for the limited purpose of showing that the averments made in the affidavit-in-reply for explaining the delay in dealing with the refund claim do not merit acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. In the facts and circumstances of the case the sum of Rs. 7,50,000/- shall bear interest @ 5% p.a. with interest being calculated at daily rests on and from 1-1-2008 till the point of time the same is actually paid. Accordingly, the respondent is directed to make payment of interest calculated in the aforesaid manner for the period 1-1-2008 up to 12-4-2008 and such payment shall be made on or before 31-7-2008, failing which the interest shall continue to run for the balance period viz, from 13-4-2008 till the point of time interest payment is actually made at the same rate as specified hereinbefore. 21. In light of the facts which have come on record it is apparent that there is a serious lapse on the part of the respondent herein and the said lapse is sought to be covered up by suggesting to the petitioner to approach a different authority only on the basis of the amount having been credited under a different head of account at New Delhi. The respondent authority should not forget that in so far as the petitioner is concerned, Directorate General of Central Excise Intelligence is merely a limb of the Central Excise Department of Union of India and the attempt to shift ..... 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