ORDER
T.K. Jayaraman, Member (T)
1. This appeal has been filed against the Order-in-Appeal No. 209/2003-C.E., dated 8-7-2003, passed by the Commissioner of Customs & Central Excise (Appeals), Cochin. In the impugned order, the Commissioner (Appeals) has upheld the Order-in-Original No. 25/2003/REFUND dated 28-4-2003, passed by the Assistant Commissioner rejecting the claim of the appellants for interest of Rs. 8,71,165/- from 8-6-1987 till 10-6-2002.
2. Shri E.K. Madhavan, learned Advocate appeared for the appellants and Shri R. N. Viswanath, learned SDR appeared for the Revenue.
3. The learned Advocate made the following submissions :-
The chronology of events leading to the claim of interest is as follows :-
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Date Events
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19-12-1986 Order-in-Appeal passed by the Collector (Ap-
peals), Madras allowing appeal holding Ma-
mooties, Pick Axes are not liable to duty.
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27-5-1987 Submitted claim for refund of Rs. 14,08,913.82 paid
as duty on the above goods for the period from 1-
3-1986 - 18-3-1987. Though the Assistant Collector
sanctioned the entire amount, he withheld an amount of
Rs. 8,73,620.27 out of total sanctioned amount of
Rs. 14,08,913.82 towards possible payment of less charge
demand on RT 12 for the months of March 1986 to June
1986 on some other goods.
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1-6-1987 The Assistant Collector issued cheque for balance amount
of Rs. 5,35,291 /-
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12-7-1996 CESTAT, New Delhi order Nos. E/290-298/96-B1 [1996 (87)
E.L.T. 172 (Tribunal)] held that demand far less charge
raised on RT 12 is invalid and set aside the orders of the
authorities below.
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13-12-1996 The appellants claimed the refund of the withheld amount
of Rs. 8,73,620.27
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31-1-1997 The Assistant Commissioner paid the withheld amount. But
the Department issued a show cause notice for recovery
of erroneous refund.
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24-8-1998 The Assistant Commissioner confirmed the demand and
ordered for crediting the amount under Section 12AC of
the Act.
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19-11-1998 The appellant paid the amount of Rs. 8,73,620.27
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21-4-2001 Order-in-Appeal No 208/2002-CE., passed by The Commissioner
(Appeals) remanding the matter to the Original authority to
examine unjust enrichment.
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3-4-2002 Order-in-Original No. 38/2002 passed after the remand
by Deputy Commissioner of Central Excise. The sanctioning
and releasing the amount of Rs. 8,71,165/-
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10-6-2002 The above amount was paid to the appellants.
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5-9-2002 The appellants submitted claim for interest on Rs. 8,71,165/-
at the rate of 18% from 8-6-1987 till 10-6-2002.
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28-4-2003 Order-in-original No. 25/2003/REFUND, passed by the
Assistant Commissioner rejecting the claim dated 5th September
2002.
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8-7-2003 Order-in-Appeal No. 209/2003 passed by the
Commissioner (Appeals) rejecting the appeal.
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The learned Advocate strongly contended that the original claim for refund in respect of Mamooties and Pick Axes is finally settled in January 1987. A part of the refund was withheld by the Department on 8-9-1987 and the withheld part was refunded on 8-3-2002. In view of these indisputable facts, it is not correct to say that the disputed part of the original refund claim was settled as per the Order dated 3-4-2002. It is submitted that an amount of Rs. 8,71,165/- was found due and payable to the appellants in June 1987 but was actually paid on 10-6-2002 due to the illegal and arbitrary action of the Department. Therefore, the learned Advocate prayed for allowing the appeal by granting interest @ 18% for the period from 8-6-1997 till 10-6-2002.
4. The learned DR reiterated the points in the Order-in-original and in the Order-in-Appeal.
5. We have gone though the records of the case carefully. As can be seen from the chronology of the events, the refund claim of the appellants has been chequered history. Though we have our sympathies with the appellants, we cannot ignore the law in deciding this appeal. It is true that due to procedural rigmaroles, the amount due to a citizen is invariably delayed. That may be one of the reasons for introducing a provision in the Customs & Central Excise legislatures for payment of interest on delayed refunds. As far as the Central Excise is concerned, Section 11BB deals with the interest on delayed refund. Section 11BB was enacted on 26-5-1995. Hence prior to 26-5-95, there was no provisions for grant of interest on delayed refunds. The chronology of the events reveal that on 13-9-96, the appellants filed a claim for the withheld amount of Rs. 8,73,620.27 on the basis of CESTAT’s order. The amount was paid on 31-1-1997. Since the refund has been granted in the above case within three months, there is no question of payment of any interest. Later the Revenue proceeded against the appellants for erroneous refund. The proceedings culminated in Order-in-Original No. 38/2002 dated 3-4-2002 sanctioning the amount of Rs. 8,71,165/- which was recovered. On 10-6-2002, this amount was paid to the appellants. In this case also there is no delay. A reading of the chronology events reveal that at each stage the excise authorities have taken a particular stand in the light of their understanding of the law. When a part of the refund was withheld in 1987, the appellants owed some money to the Government and this refund was adjusted in the demand made in RT 12. The officer who took the decision, perhaps, acted in the interest of the Revenue. At this stage, after 18 years it would be very difficult for us to say that action of that officer in withholding refund was illegal. After 9 years, the appellant got a favourable decision from the CESTAT, New Delhi holding that the demand for less charges raised in RT 12 is invalid. Only in view of this position, consequent to the CESTAT decision, the appellant became entitled to the withheld amount. If the CESTAT had held otherwise, the appellant would not be entitled to file refund claim in 1996. Therefore, we cannot find fault with the observations of the Commissioner(Appeals) that the amount withheld assumes the character of duty paid towards the short levy. Even though the withheld amount was refunded on 31-1-97, the Revenue proceeded against the appellants for recovery of erroneous refund. In these circumstances, we cannot pin point any blame on any authority. They have acted with utmost caution in the interest of the Revenue. It is to the credit of the appellants that they pursued this case diligently with single minded devotion and received the refund on 10-6-2002. Unfortunately for the appellants, in the facts of the present case, we do not find any provision to grant interest at the rate of 18% from 8-6-1987, Hence we reject the appeal and uphold the Order-in-Appeal.
(Pronounced in the open court on 4-10-2005)