TMI Blog2003 (8) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, a manufacturer and packer of instant coffee, exported the instant coffee packed in cans to various countries without payment of Central Excise duty. According to the petitioner, no excise duty is payable on such goods. Petitioner thereafter filed applications before the second respondent seeking refund of Modvat credit taken on goods used in the manufacture of instant coffee packed in cans. The first claim is for a sum of Rs. 23,941.80. The second claim is for Rs. 3,77,992.80, the third and fourth claims being for a sum of Rs. 3,52,105.20 and Rs. 87,561.20 respectively. Second respondent rejected three claims out of four refund claims i.e., in respect of claims for Rs. 23,941.80, Rs. 3,77,992.80 and Rs. 87,561.20. Aggrieved by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able from the date of the application. Per contra, learned Counsel for the respondent supports the impugned order. 6.After hearing the learned Counsel for the parties, I have carefully perused the material on record. 7.Material facts reveal of a claim for refund by the petitioner. Refunds have been ordered in terms of the orders available on record. However, the Assistant Commissioner, after remand by the Appellate Commissioner, has chosen to order only refund and not the interest. In the circumstances, petitioner sought for interest in terms of Sec. 11BB of the Act. While considering the said request Asstt. Commissioner has stated in the impugned endorsement that as regards the interest, the petitioner should have filed an appeal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the date immediately after three months from such date, till the date of refund of such duty. 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." A reading of Section 11BB would show that if the duty ordered to be refunded under sub-section (2) of Section 11BB to any applicant is not refunded within three months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9% and, instead I deem it proper to grant 5% from the date of the application, which in my view, would meet the ends of justice. Courts of law have consistently ruled that even in the absence of any provision of interest, Courts can grant interest under Art. 226 of the Constitution [Reference - 1991 (52) E.L.T. 165; 2000 (119) E.L.T. 279 (M.P.) = 2000 (90) ECR 452]. Interest in terms of this order is to be settled within three months from the date of receipt of a copy of this order. 9.Respondents' Counsel argues that Annexure-N is an appealable order. A reading of Annexure 'N' would show that it is not an adjudicatory order, and it is only an endorsement. Therefore, no appeal would lie as argued by the Counsel. 10.Petition is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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