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Manisha Pharma Plast Pvt. Ltd. vs Commissioner Of C. Ex. on 5 October, 2006

Customs, Excise and Gold Tribunal – Mumbai
Manisha Pharma Plast Pvt. Ltd. vs Commissioner Of C. Ex. on 5 October, 2006
Equivalent citations: 2007 (208) ELT 213 Tri Mumbai
Bench: J Balasundaram, Vice-, A T K.K.


ORDER

K.K. Agarwal, Member (T)

1. The applicant in the miscellaneous application before us seeks order from the Tribunal to direct the department to comply with its order dated 12-1-2005 to the extent that the statutory amount of interest due on the refund sanctioned amounting to Rs. 2,53,81,156.02 be ordered to be paid to the applicant which is being denied by the department.

2. The facts of the case are that the applicant has claimed a refund of duty amounting to Rs. 4,78,45,990.30 with interest which was denied by the lower adjudicating authority but allowed by Commissioner (Appeals) vide its order dated 1-10-2003. The Revenue’s appeal against the Commissioner (Appeals) order was dismissed by the Tribunal vide its Order Nos. A-120-121/WZB/2005/C-III, dated 12-1-2005 2005 (191) E.L.T. 297 (Tri.-Mum.) and the cross objection filed by the applicant regarding non-payment of refund and interest were upheld. However, in spite of the dismissal of appeal filed by the Revenue, the interest still remain unpaid and therefore the applicants filed a miscellaneous application before the Tribunal which was again dismissed by the Tribunal vide its Order Nos. M/71-72/WZB/2005/C-III/EB, dated 22-8-2005 on the ground that there was no specific order regarding payment of interest either by the adjudicating authority, or Commissioner (Appeals) or Tribunal or Hon’ble Gujarat High Court and therefore no direction can be issued to the adjudicating authority to grant interest. It is against this miscellaneous application that the applicant have filed the present miscellaneous application stating that the Tribunal erred in holding that neither the Commissioner (Appeals) nor the CESTAT had specifically granted interest to the applicant.

3. Learned Advocate submits that in their appeal memorandum filed with the Commissioner (Appeals) they have specifically prayed for grant of refund along with interest and since the appeal was allowed by the Commissioner (Appeals), it has to be held that the interest was also allowed by Commissioner (Appeals). Similarly in their cross-objections filed with the Tribunal they have prayed for grant of refund and interest to the same was upheld by the Tribunal vide its earlier order dated 12-1-2005 and therefore it has to be read in the order that the plea for payment of interest was allowed. Even otherwise it was submitted that there is no statutory requirement for the applicant to seek any specific relief either from the CESTAT or from Commissioner (Appeals) for claiming their statutory interest. The said relief is automatic and mandatory and nothing further is required to be done by the applicant once admittedly the refund is admitted by the department and granted late to the applicants as in the present case. In support thereof he cited the decision of the Rajasthan High Court decision in the case of J.K. Cement Works v. Assistant Commissioner . It was submitted that the appeal filed by the Revenue against the judgment of the Rajasthan High Court has been dismissed by the Supreme Court as reported in 2005 (179) E.L.T. A150. It was further submitted that the Central Board of Excise and Customs has also issued a Circular No. 670/61/2002-CX dated 1-10-2002, where it has been categorically stated that the provision of Section 11BB are directed automatically and Central Excise Officer are not required to wait for instruction from any superior officer or to look for instruction in the orders of the higher appellate authority for grant of interest. In view of this it was submitted that the grant of interest was mandatory and the Tribunal has recently in a similar case granted such interest vide its order No. E/3914/06, dated 1-8-2006. In view of this the learned Advocate sought direction from the Tribunal to the department to grant interest due to the applicants.

4. We have considered the submissions. We find that the Tribunal has-vide its earlier Order Nos. M/71-72/WZB/2005-C-III/EB dated 22-8-2005 clearly held that there were no direction for grant of interest by any of the authority i.e. the adjudicating authority, Commissioner (Appeals), Tribunal or Hon’ble Gujarat High Court. We cannot sit in judgment over the above finding given by a coordinate Bench. As regards plea of automatic sanction of refund without requiring the applicants to make a specific claim for interest, we find that all these facts including Rajasthan High Court Order and the Board’s Circular were in existence prior to issue of Tribunal order and have also been brought to the notice of the Tribunal at the time of filing the first miscellaneous application seeking similar relief. No new fact has come into existence. We further note that as observed by the Rajasthan High Court and also clarified by the Board vide its circular dated 1-10-2002 the interest has to be automatically granted and there is no requirement for the applicant to seek any relief from the appellate authorities. In such circumstance the applicant should seek interest from the department and on their failure to do so should ask for issue of an appealable order and should follow the appeal procedure seeking relief against such denial of interest. The recent Tribunal’s order cited by the applicant is not relevant as in that case the Revenue has come in appeal against the order of Commissioner (Appeals) who has specifically ordered grant of interest which order was upheld by the CESTAT. In the present case, there is no order for payment of interest by Commissioner (Appeals) or the Tribunal in their earlier orders as has also been held by the Tribunal vide its earlier order dated 22-8-2005 on the first miscellaneous application filed by the applicant.

5. In view of above, the miscellaneous application now filed is dismissed.

(Pronounced in Court on 5-10-06)

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