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TMI Blog2013 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... tification cannot be opted at any time in the middle of the year as they were paying full rate of duty. The appellant paid the differential duty amounting to Rs.7,21,793/-under protest. The appellant filed the refund claim of the duty paid subsequently. The appellant's claim of refund was rejected by the JAC vide OIO No.52/REFUND/96 dated 17.09.96. In appeal, the Commissioner (Appeals) directed the JAC to re-determine the amount. The JAC re-adjudicated the case and rejected the refund claim. The appellant again fired the appeal with the commissioner (Appeal), who remanded the case back for de-novo adjudication. The JDC re-adjudicated the case and rejected the claim. The appellant again filed appeal against the said order which was also reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. I find that the matter was listed for disposal on 23.01.13 and 15.03.13 on which dates none appeared. Notices intimating the hearing of appeal today were sent to the assessee on the given addresses. Since the issue involved lies in a narrow compass, I take up the appeal for disposal in the absence of any representation from the assessee. 5. Ld. D.R. would take me through the facts of the case and order-in-appeal. He would then submit that the issue is now settled by the Larger Bench of the Tribunal in the case of Sun Pharmaceuticals Industries Ltd. 2005 (185) ELT 253 (Tri.LB). He would produce the copy of the said judgment of the Larger Bench for my perusal. He would also rely upon the judgment of the Hon'ble High Court of Madras i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreted in the same manner as under Section 244(1A) of the Income Tax Act, that the expression referred not only to tax, but also to interest. 19. The Supreme Court referred to the decisions in the case of CIT v. Goodyear India Limited [2001] 249 ITR 527, D.J. Works v. Deputy CIT [1992] 195 ITR 227, CIT v. Needle Industries Private Limited [1998] 233 ITR 370 and CIT v. Ambat Echukutty Menon [1988] 173 ITR 581 and rejected the view of the Bombay High Court. The Apex Court held that the assessee was entitled to interest as per the provisions of Sections 244 and 214 of the Income Tax Act. On the interest payable on the belated refund of interest paid by the assessee, in paragraphs 75 and 76, the supreme Court considered the general princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision regarding payment of duty in advance by the assessee, exists in the Central Excise Act. Rather duty is payable by an assessee at the time of clearance of the goods from the factory. The Central Excise Act only speaks of provisional assessment under Rule 9B which can be claimed by the assessee or adopted by the deptt., when there is dispute regarding classification of the goods, and the correct Tariff rate of duty leviable on these goods or, where the clearance of the goods has to be made by an assessee under an agreement containing price variation clause. It is only on finalisation of that provisional assessment, the excess found duty, if any is required to be refunded to the assessees by the department and even for that refund perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interest. 8. In the light of what has been discussed above, on the basis of the above referred two judgments of the Gujarat High Court, which are under different Tax statute, interest on delayed payment of interest, cannot be held to be permissible under the Central Excise Act and the Rules made thereunder, for want of any specific provision in the Act or the Rules. Therefore, the Tribunal has no power to award such a interest to the assessee. The law laid down in Hindustan Motors v. CCE (supra), to the contrary, being not a good law, stands overruled. The reference stands accordingly answered. 9. It can be seen from the above reproduced judicial pronouncements of the Hon'ble High Court and the Larger Bench of the Tribunal, there are no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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