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TMI Blog1999 (12) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... r Rs. 60,000/- and deposit the balance amount in cash. The order so modified by the Tribunal was further modified by the Hon ble High Court of Delhi on 15-12-1993 while disposing of a Writ Petition filed by the party. Accordingly, the party was permitted to furnish security of Rs. 60,000/- to the satisfaction of the Assistant Collector of Central Excise instead of bank guarantee. 2. The applicants furnished security of Rs. 60,000/- through National Savings Certificate and made cash deposit of the balance amount of Rs. 2,17,389/- as per the Tribunal s order as modified by the High Court as above. A part of such deposit was effected on 9-3-1994 and the balance made by debit in RG-23A Part II on 12-3-1994. 3. The appeal was finally disposed of as per Tribunal s Order No. A/798/97-NB(SM), dated 3-10-1997, whereby the impugned order of the Collector was set aside and the subject-matter was remanded to the adjudicating authority for de novo adjudication. The applicants filed a refund claim in respect of the aforesaid amount of Rs. 2,17,389/-, before the Assistant Commissioner of Central Excise on 18-11-1997. The claim was, however, rejected by the Assistant Commissioner on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders referred to in the said paragraph 86 of the Apex Court s judgment, according to the learned Advocate. 5. Yet another submission of the learned Advocate is that the refund claim by the applicants was a relief consequential to the order of the Tribunal setting aside the order of adjudication of the Commissioner and that such refund ought to have been granted without a formal application therefor, as early as possible after receipt of communication of the order of the Tribunal. Since the refund was not made for a long time after communication of the order of the Tribunal, the applicants had no option but to file a formal refund claim. The Assistant Commissioner had no jurisdiction to reject such claim. On the other hand, he ought to have allowed the claim by way of implementing the order of the Tribunal setting aside the order of adjudication of the Commissioner of Central Excise. When the refund claim was rejected by the Assistant Commissioner, the applicants had no option but to approach the Tribunal invoking its inherent powers under Rule 41 of the CEGAT (Procedure) Rules. The learned Advocate, therefore, prays for allowing the present application. In support of the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their appeal itself which was decided in their favour. Consequent to that decision, the amount deposited by them in compliance with the stay order of the Tribunal became repayable to them . 6. The learned Advocate has finally placed reliance on the decision of the Hon ble High Court in the case of Voltas Limited v. Union of India [1999 (112) E.L.T. 34 (Delhi)]. In that case, an adjudicating authority under the Central Excise Act had confirmed a demand of duty of over Rs. 81 lacs against the petitioners and imposed on them a fine of Rs. 35 lacs and a penalty of over Rs. 35 lacs. The aggrieved petitioners appealed against such order of adjudication to the Tribunal and also prayed for waiver of pre-deposit and stay of recovery. The Tribunal directed the party to deposit Rs. 50 lacs under Section 35F of the Act and stayed recovery of the balance amount subject to the deposit. The petitioners pre-deposited the amount in compliance with the Tribunal s order. The appeal was finally heard and allowed by way of remand by the Tribunal, directing the adjudicating authority for deciding the issue afresh in the light of certain technical literature made available by the party. When the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. 9. It cannot be disputed that the Tribunal has powers under Rule 41 ibid to make such orders or give such directions as may be necessary or expedient to give effect to its orders or to secure the ends of justice. Rule 41 ibid has to be read in conjunction with Rule 40 of the CEGAT (Procedure) Rules which mandates that the Tribunal shall exercise control over the Departmental Authorities in relation to all matters arising out of the powers or of the discharge of the functions of the Tribunal. It is not disputed that the order of adjudication passed by the Collector of Central Excise was set aside by the Tribunal. It is also not disputed that the pre-deposit in question was made under Section 35F of the Central Excise Act as a pre-deposit pending the appeal. When the appeal was finally disposed of by the Tribunal by setting aside the order of adjudication, there was no reason why the disputed amount should be retained by the Department. Therefore, the department was duty-bound to refund the money as early as possible upon receipt of communication of the Tribunal s order setti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Tribunal. 11. The view taken by the Assistant Commissioner that the ruling of the Hon ble Supreme Court as contained in Para 86 of Mafatlal Industries Limited is not applicable to the Tribunal s orders of stay etc. is patently erroneous. The Assistant Commissioner has apparently based his order, inter alia, on the Apex Court s observations contained in the last two sentences of para 85 of Mafatlal Industries Limited. These observations, I find, apply to a refund application as envisaged under Section 11B(1) of the Central Excise Act. The refund application in the instant case is not one such application, as I have already observed. Hence, the Assistant Commissioner s order is one passed on a wrong premise. Further, it is abundantly clear from Para 86 of the Apex Court s judgment in Mafatlal Industries Limited that the word court used in the said para denotes not only a High Court or the Supreme Court but also the Tribunal. The said para 86 is reproduced below :- We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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