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TMI Blog2008 (7) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Mandamus or any other appropriate writ, direction or order, directing respondent No. 2 to pay compensation by way of interest at the rate of 12% p.a. on the amount of Rs. 7.50 lakhs for the period from August-October. 2001 till actual restitution of this amount, or for the period that may be deemed fit by this Hon'ble Court; C. Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents, their servants and agents to forthwith return the amount of Rs. 7.50 lakhs to the petitioners with interest that may be deemed fit by this Hon'ble Court; D. An ex-parte ad-interim relief in terms of Para 13(C) above may kindly be granted; F. Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 3. The facts, which are not in dispute, are that on 10-8-2001 officers of the Directorate General of Central Excise Intelligence, Vadodara visited premises of "(i) M/s. Gopi Synthetics, Ahmedabad; (ii) M/s. Omkar Exports (the petitioner herein) and (iii) M/s. Omkar Textile Limited for making certain inquiries. It appears that the said authority prima facie opined that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osited in 2001 and for more than a period of 4 years, even the proceedings to confirm the said amount deposited by the assessee at the time of investigation, had not been initiated by the Revenue. As rightly observed by the Commissioner (Appeals), Revenue has no authority or jurisdiction to keep the said deposit amount with them for unlimited time in absence of any determination of the duty due from the assessee or even initiation of the same, the Revenue has no justification for keeping the said amount with them. As such, appellate authority rightly held the amount to be refunded to the respondent" 7. Armed with the two orders made by both Commissioner (Appeals) and the Tribunal the petitioner approached the respondent authority vide communication dated 25-2-2008 by stating that the refund claim made by the petitioner on 11-3-2005 was required to be sanctioned with interest from 10-8-2001. The said letter carried an endorsement which reads as under: "The Commissioner, Central Excise, Ahmedabad-I, this is just to show you how the assessee falling under your jurisdiction is being treated. What would happen if the officers of the law take law in their hands and try to dictate their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e funds have been retained and utilized by the respondents without authority of law. 11. On behalf of the respondent, learned counsel submitted that the facts narrated in the affidavit-in-reply would indicate that there was some confusion in light of the amount having been credited under a particular head over which the respondent authority had no direct control and hence, by virtue of administrative exigences, time has been consumed in sanctioning the refund and thus, no case was made out for refund. Alternatively, it was contended that even under normal circumstances statute stipulates payment of interest only if a period of 90 days has elapsed within which the refund claim is not sanctioned and the interest has to be computed from the ninety-first day in such circumstances. Therefore, if one considers the fact that after order of CESTAT dated 30-11-2007 the petitioner had filed a fresh refund claim on 7-12-2007 and that the order of refund is made on 31-3-2008 no interest would become payable as the balance period i.e. after deducting 90 days, would be a period of 22 days which is less than a completed month. 12. There is no dispute as to the fact about a sum of Rs. 7,50,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for explaining the delay in dealing with the refund claim do not merit acceptance considering the conduct of the respondent authority. 16. In so far as the reliefs prayed for by the petitioner are concerned, in relation to the refund itself, the said prayer would not survive in light of the order dated 29-1-2008 issuing refund. The only question that would then survive is as to whether the petitioner is entitled to any interest, and if yes, at what rate and for what period. 17. As can be noted from the extracted portion of the order made by the Commissioner (Appeals) in Paragraph No. 17 of the order the Commissioner (Appeals) had recorded a finding that the petitioner was not entitled to interest in terms of the provisions of either the Central Excise Act or the Customs Act and hence, there was no scope for paying any interest to the petitioner. In the circumstances, the petitioner not having challenged the aforesaid finding, despite revenue having preferred an appeal before the Tribunal, cannot claim interest at least up to the date of order made by the Commissioner (Appeals). 18. Thereafter, considering the fact that the respondent authority had carried the matter in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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