JUDGMENT
V.K. Jain, Member (T)
1. The subject appeal has been filed by M/s. Kitply Industries Ltd. (here-in-after called as the appellant company) being aggrieved with the Order-in-Appeal No. 44/CE/GHY/2002 dated 12.3.2002 passed by the Commissioner (Appeals), wherein she has rejected the appeal of the appellant company, Vide the Order-in-Original No. 32/Commr/Ch.44/CE/96 dated 5.12.96, the appellant company in the instant case was ordered to pay Rs. 8,13,40,448.00 as duty, and penalty of a sum of Rs. 1.00 crore has been imposed on the appellant company and that of a sum of Rs. 1.00 lac imposed on the Managing Director of the appellant company, and the Commissioner (Appeals) also appropriated the predeposited amount of Rs. 1,00,00,000.00 as made by the appellant company towards adjustment of above realization.
1.1 Being aggrieved, the appellant company submitted the present appeal before this Tribunal which vide their Final Order No. A-616-617/Cal/99 dated 15.6.99 The Tribunal confirmed the demand of duty amounting to Rs. 58,96,580.00 and reduced the penalty amount to Rs. 10,00,000.00 and set aside the demand of duty amounting to Rs. 7,54,43,868.00 and personal penalty of Rs. 1,00,000.00 imposed on the Managing Director.
1.2 In pursuance of the final order of the Tribunal as above, the appellant company submitted a refund claim of Rs. 31,03,420.00 (Rupees thirty-one lakh three thousand four hundred and twenty) on 17.10.2000 to the Commissioner, Central Excise, Shillong. Considering all the aspects of the refund claim, the Assistant Commissioner, Tinsukia found the claim of the appellant company as admissible and accordingly sanctioned the refund amounting to Rs. 31,03,420.00, but nothing was mentioned in the Order dated 11.1.2001 about the claim of the amount of interest as made by the appellant company. Being aggrieved with the above Order for denial of interest, the appellant company submitted the instant appeal before this appellate forum for sanction of interest accrued on Rs. 31,03,420.00 from the date of deposit till date of sanction of refund. The Commissioner (Appeals) dismissed the appeal filed by the appellant company on the ground that the predeposited amount has been proved to be not Central Excise duty under Section 11BB of the Central Excise Act, 1944.
2. We have heard Shri K.K. Banerjee, learned Advocate for the appellant company and Shri T.K. Kar, learned SDR for the Revenue. Learned Advocate has cited the following judgments:
(i) 1996 (82) ELT 177 (Bom) in the case of Suvidhe Ltd. v. Union of India;
(ii) 2002 (240) ELT 338 (Guj) in the case of TATA SSL Ltd. v. Union of the India;
(iii) 2002 (144) ELT 56 (Bom) in the case of NELCO Ltd. v. Union of India;
(iv) 2002 (144) ELT 59 (DEL) in the case of S.K. Modi v. Union of India;
(v) 2003 (55) RLT 850 (CEGAT-MUM) in the case of PAC Systems Pvt. Ltd. v. CC, Mumbai;
(vi) 2002 (139)ELT591 (Tri.-DEL) in the case of Bharat Heavy Electricals Ltd. v. Commissioner of Central Excise, Meerut;
(vii) 2003 (58) RLT 385 (CEGAT-Del) in the case of Somaiya Organics (I) Ltd. v. CCE, Allahabad;
3. Shri T.K. Kar, learned SDR has reiterated the findings of the Commissioner (Appeals).
4. We find that in this case the Tribunal has held that the interest is payable from the date of final order and also held that no interest can be claimed for the period prior to the final order. The entitlement of the refund may arise only when the appeal was finally disposed of by the Tribunal. If that be so, no interest can be given for the period prior to the date of final order. Respectfully following the above decision, we hold that the appellant company is not entitled for refund and also interest for the period prior to the date of final order of the CESTAT. The CESTAT, Delhi Bench, in the case Somaiya Organics (I) Ltd. cited above, has held that for delay in refunding predeposited amount, Revenue has to pay interest from the expiry of three months after the date of CESTAT’s final order till date of payment.
5. Respectfully following the above Order, we order that the appellant company is entitled to interest @ 12% from the expiry of three months after the date of the Tribunal’s order till the date of payment. Interest as above will be calculated and will be paid to the assessee within a period of one month from the date of receipt of this Order. Appeal is allowed accordingly.