ORDER
G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the assessee with reference to the Order-in-Appeal No. 240/2002-C.E., dated 22-4-2002.
2. Issue relates to interest on refund claim. It was submitted by the Counsel that in pursuance of the CEGAT’s Final Order Nos. 3008-3028, dated 25-11-99 [2000 (116) E.L.T. 483 (Tri.)], the party has filed a refund claim on 17-1-2000. It was submitted on behalf of the party that the refund claim was adjusted towards the other demand, though the very demand has been challenged before the first appellate authority. Since the party did not get the refund amount, the party had no alternative but to file a miscellaneous application. Considering the facts and circumstances, the Tribunal passed a miscellaneous Order dated 20-9-2000 directing the Department to refund the amount.
3. Shri Raghu appearing for the appellants submitted that at the first instance, there was no necessity for the party to file a separate application to claim refund, since in pursuance of the order of the Tribunal, it was the bounden duty of the Departmental authorities to sanction the refund. Though refund amount has been sanctioned, nevertheless, same has been appropriated towards the other demand which is not permissible. He said that the party is entitled to interest on refund amount due from the date till payment is made, He said that even assuming that the refund claim was lodged on 17-1-2000, nevertheless he is entitled to interest from 17-4-2000 to 5-12-2000.
4. Shri Narasimha Murthy appearing for the appellants submitted that since the refund was given to the party within three months from the miscellaneous order passed by the Tribunal, there was no justification to grant any interest as per Sec. 11B of the Act. Furthermore, it was submitted by him that refund due to the party is not a duty amount but only a pre-deposit and pre-deposit as such cannot be treated as duty in terms of Sec. 11B, as it was held by the Bombay High Court in the case of Killick Caribonium v. Union of India reported in 2002 (143) E.L.T. 491 (Bom).
5. I have carefully considered the submissions made by both sides and perused the records. It is clear from the records that the party is entitled to refund from the date of final order of the Tribunal dated 25-11-99. However, the party has filed a refund claim on 17-1-2000. It was not correct on the part of the authorities below to have adjusted the refund amount towards the other demand, since the very demand was under challenge by way of appeal, as it was observed by the Tribunal while passing the miscellaneous order. In the facts and circumstances, I am of the view that the party is entitled to interest from 17-4-2000 till 5-12-2000. Appeal is allowed, accordingly.