TMI Blog2005 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... as under. Learned Collector of Central Excise passed an order dated 2-6-1989 holding that the structurals fabricated by the petitioner which went to the erection at Visakhapatnam are exigible and thereby confirmed the demand of excise duty. In the appeal filed by the petitioner before the learned CEGAT, aggrieved by the said adjudication order, Stay Order No. 65/1990-BT, dated 18-1-1990 [1990 (47) E.L.T. 391 (T)] was passed directing the pre-deposit of Rs. 28,00,000/- under proviso to Section 35F of the Central Excise Act (for short 'the Act') staying the balance demand and the penalty. The petitioner complied with the said order. The appeal was disposed of by order dated 3-3-1997 setting aside the order of the learned Collector and rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und in terms of Section 11B of the Act and that the petitioner failed to approach the proper authority. 5.Before we take up for consideration, the rival contentions, it would be appropriate at this juncture to refer to the judgments cited at the Bar, by Sri Kisore Rai, learned Counsel for the petitioner. 6.Delhi High Court in Elephanta Oil and Vanaspati Industries Ltd. v. Union of India [1994 (73) E.L.T. 43 (Del.)] considered the question with regard to the payment of interest on the amount of redemption fine refunded pursuant to the order of CEGAT. Interest was awarded in that case on the amount of refund. 7.Bombay High Court in Suvidhe Ltd. v. Union of India [1996 (82) E.L.T. 177 (Bom.)] dealt with the question of refund of pre-depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit an amount of Rs. 4,44,000/- and on compliance thereof, the balance amount of duty shall stand waived till the disposal of their appeal and that amount should not be released to the appellant until he establishes that he has not wrongly enriched himself by collecting duty from his customers. It is not clear that the amount paid is a condition for waiving of payment for grant of stay by the appellate authority and not duty which is to be refunded. In that view of the matter, we do not think that there is any reason to accede to the contention advanced by the respondent." 9.The judgment of the Delhi High Court in Sanita Arora v. Union of India [2002 (142) E.L.T. 554 (Del.)] is relied upon by the petitioner in support of its contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners are entitled to the refund........." 12.Nestle India Limited v. Asst. Commissioner of C. Ex., Mysore-II [2003 (154) E.L.T. 567 (Kar.)] is a case where CEGAT remanded the case for de novo adjudication and re-determination. In terms of that order, re-quantification was taken up and differential duty payable by the petitioner in that case was determined. The petitioner applied for refund of the excess amount which he had deposited by way of pre-deposit. The claim was resisted inter alia on the ground that regular refund claim was required to be made under Section 11B along with all relevant documents. Their Lordships of the Karnataka High Court observed that the question has been considered by two High Courts, one is Bombay High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal under the Central Excise Act, 1985 was, on the assessee being ultimately successful, refundable to the assessee with interest. The learned Solicitor General has taken instructions and has stated before this Court that the Central Board of Excise Customs proposes to issue a circular in connection with the payment of interest on all such pre-deposits. A draft copy of the proposed circular has been handed over to this Court. Having regard to the contents of the draft circular we direct compliance with the final order impugned before us and payment of interest in terms of the draft circular. The draft circular shall be appended to and the contents form part of this order. The appeal is disposed of. In view of this order any judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re us. However, operative portion of the order has been extracted in Paragraph 5 of the affidavit filed in support of the writ petition. A perusal thereof would show, a fact, which is not in dispute, that while allowing the appeal, learned CEGAT remanded "the matter to the adjudication Commissioner of Central Excise for de novo consideration". The order of the learned Collector was set aside. Though it is a remand order for de novo consideration by the Commissioner of Central Excise, insofar as the appeal before the learned CEGAT is concerned, the matter can be said to have been finally disposed of setting aside the order of the learned Collector. The pre-deposit made by the petitioner under Section 35F is thus liable to be refunded with in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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