JUDGMENT
Bhaskar Bhattacharya, J.
1. This is an appeal under Section 130A of the Customs Act, 1962 (hereinafter referred to as the Act) and is directed against the order dated 17th January, 2001 passed by the Customs, Excise & Gold (Control) Appellant Tribunal CCEGAT’) by which the said Tribunal refused to review the earlier order dated 26th May, 2000 by which the prayer for interest in terms of Section 27A of the Act was refused.
2. The facts giving rise to the filing of the present proceedings may be summed up thus:’
(a) On 23rd September, 1987 the present appellant imported polystyrene resin vide Bill of Entry No. 1-1599 and sought clearance of the goods under sub-heading 3903.10 of CE tariff. The Customs Authorities, however, denied the benefit and the Bill of Entry was cleared by charging countervailing duty at the rate of 40 per cent. The appellant paid the amount with protest and subsequently on 28th September, 1987 claimed refund.
(b) The Customs Authorities issued show-cause notice why refund claimed should not be credited to Consumer Welfare Fund in terms of Section 27(2) of the Act on 30th July, 1993. The present appellant filed reply to the said notice and ultimately, by the order dated 7th April, 1994, the Assistant Commissioner sanctioned refund but credited the said amount to the Consumer Welfare Fund.
(c) Being dissatisfied, the present appellant preferred an appeal and the Collector (Appeals) remanded the case back on 7th September, 1994 for fresh consideration.
(d) On 16th May, 1995, the Assistant Commissioner again allowed the claim of refund with a direction to credit the amount to Consumer Welfare Fund. The appellant again preferred an appeal but the Commissioner (Appeals) dismissed the appellant’s appeal.
(e) Being dissatisfied, the appellant preferred an appeal before the Tribunal and by order dated 9th February, 1998 the Tribunal allowed the appeal filed by the appellant.
(f) Consequent to such order dated 9th February, 1998, the appellant approached to the Assistant Commissioner for payment of refund along with interest for delayed payment. By the order dated 25th February, 1999, the Assistant Commissioner passed order of refund but without giving interest for the delayed payment. By a letter dated 25th March, 1999, the appellant again requested the Assistant Commissioner for payment of interest, but the said prayer was turned down.
(g) Being dissatisfied, the appellant preferred an appeal before the Tribunal but the Tribunal by order dated 26th May, 2000 dismissed the appeal on the -ground that the appellant filed the documents on 21st December, 1998 and the refund claim was sanctioned on 6th February, 1999 and as such no interest was payable in terms of Section 27A of the Act.
(h) The present appellant filed an application for review claiming rectification of mistake of the Tribunal pointing out that the Tribunal wrongly stated that all papers relating to the claim were filed only on 21st December, 1998 by totally overlooking the fact that those papers were really submitted in 1993.
(i) The Tribunal rejected such application holding that there was no mistake in the order as the appellant really submitted its claim in complete form with the requisite documents for processing the claim of refund only on 21st December, 1998.
3. Being dissatisfied, the present reference has been filed and a Division Bench of this Court entertained the appeal on the question whether the appellants were entitled to the interest from the year 1995 till the amount was actually paid.
4. To appreciate the question involved herein it will be profitable to refer to the provisions contained in Section 27A of the Act which are quoted below:
27A. Interest on delayed refunds. — If any duty ordered to be refunded under Sub-section (2) of Section 27 to an 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 five per cent] and exceeding thirty per cent per annum as is for the time being fixed [by the Central Government, by notification in the Official Gazette], on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty:
Provided that where any duty, ordered to be refunded under Sub-section (2) of Section 27 in respect of an application under Sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section 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 Customs or Deputy Commissioner of Customs] under Sub-section (2) of Section 27, 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 that sub-section for the purposes of this section.
5. It appears from the materials on record that the present appellant filed the application for refund of the claim in terms of Section 27(1) of the Act on 28th September, 1987 and all necessary documents in support of the claim were also filed (See: first paragraph of page 30 of the paper book). As pointed out earlier, after fighting the legal battle for more than twelve years, the appellant got the relief from the Tribunal by an order dated 9th February, 1998 with a direction for refund to the appellant. Therefore, in the present case, the application in terms of Section 27(1) of the Act was filed on 28th September, 1987 and order in terms of Section 27(2) of the Act was passed by the Tribunal on 9th February, 1998 and in view of the Explanation added to Section 27A of the Act, the order passed by the Tribunal should be deemed to be an order passed under Sub-section (2) of Section 27 for the purpose of Section 27A.
6. According to Section 27A of the Act, if the duty ordered to be refunded in terms of Sub-section (2) of Section 27 is not refunded within three months from the date of receipt of application under Sub-section (1) of Section 27, the interest is payable in terms of Section 27A of the Act at the rate mentioned therein. In the present case, the application under Section 27(1) having been filed on 28th September, 1987 and the same being allowed by passing an order under Section 27(2) of the Act on 9th February, 1998, the appellant could be entitled to claim interest on the refunded amount for a period starting from the expiry of three months from 28th September, 1987 till the date of actual payment if the proviso to Section 27A was not introduced.
7. However, in this case, the application under Section 27(1) of the Act having been filed before the Finance Bill, 1995 received the assent of the President, the proviso to Section 27A is attracted and the appellant will be entitled to the interest not from the date of expiry of three months from the date of filing of the application under Section 27(1) of the Act but after the expiry of period of three months from the date the President gave assent till actual payment.
8. Therefore, the Tribunal below wrongly proceeded as if the date of filing of the claim was December 22, 1998. We have already pointed out that refund claim was really made on 28th September, 1987, but having filed such application before the date of assent of the President to Finance Bill, 1995, in view of proviso to the Section 27A of the Act, the appellant will be entitled to get interest from the date immediately after expiry of three months from the date when President gave assent to the Finance Bill, 1995 till the date of actual payment, namely, 25th February, 1999.
9. We accordingly answer the reference by holding that the appellant in the present case is entitled to get interest from the expiry of three months from the date of giving assent of the President to the Finance Bill, 1995 till 29th February. 1999, the date of passing of order of delayed payment without interest. The reference is, thus, allowed with costs which we assess at 300 G.Ms.
Arun Kumar Bhattacharya, J.
10. I agree.