9911796707
TMI Blog1989 (12) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian Partnership Act, 1932. The petitioner is a re-roller of stainless steel product namely known as 'Patta'. The product is roughly shaped. It is even in shape, size and thickness. The petitioner installed small equipment which are capable of rolling only small piece of raw materials from 2 to 10 kg. in weight. The Rolling equipment or machinery installed by the petitioner are not strip mills and there is no provision of facilities for coiling and de-coiling the rolled product. The product manufactured by the petitioner was incorrectly classified by the respondent No. 4 as sheet or strips falling under sub-item (ii) of Tariff Item No. 26-AA of the erstwhile Central Excise Tariff in spite of the factum that the petitioner requested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-2-1986 filed by the petitioner and 15 other persons. The appeals were allowed with certain directions by the order dated 22-1-1986 and 11-2-1986, which have been placed on the record as Ex. 1. By virtue of the appellate orders the petitioner claimed refund of the excise duty paid under protest or paid by mistake of law. The petitioner submitted an application on 27-1-1986 for refund of Rs. 1,06,810/- along with interest at the rate of 24% per annum. The application for refund dated 27-1-1986 has been produced on the record as Ex. 2. The applications of some of the applicants for-refund was accepted in pursuance of the order dated 22-1-1986 and 11-2-1986 passed by the Collector (Appeals), Central Excise, New Delhi by the Assistant Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions given by the Collector (Appeals) vide his order dated 9-6-1987 and again rejected the claims of the petitioner and other persons by his order dated 18-9-1987. A copy whereof has been placed on the record as Ex. 5. 6. Aggrieved against this order, the petitioner filed an appeal before the Collector (Appeals), Central Excise, New Delhi and the Collector (Appeals) accepted the appeal filed by the petitioner by his order dated 20-9-1988 and set aside the order passed by the Assistant Collector, Central Excise, Jodhpur dated 18-9-1987 and directed that consequential relief may be granted to the petitioner. A copy of the. order dated 20-9-1988 has been produced on the record as Ex. 6. 7. Aggrieved against the appellate order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has filed the present writ petition seeking a direction to the respondents that the excise duty charged from the petitioner in excess may be refunded back to him with interest. Mr. N.N. Mathur, learned counsel appeared on behalf of the respondents and opposed the writ petition. 9. I have heard both the learned counsels and have also perused the record. 10. The short question which requires consideration in this case is that after the contention of the petitioner being upheld on a chequered history of litigation, the petitioner is entitled to refund with interest or not. From the facts mentioned above, it is apparent that a number of litigations ensued for classification of the product of the petitioner and ultimately the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Item No. 26-AA (1a) and therefore, the petitioner is entitled to refund. The petitioner has claimed refund along with 24% interest and in support of the aforesaid contention the learned counsel has invited my attention to Redihot Electricals v. Union of India Ors. - (1989) 30 STL 103 (Del.); D. Cawasji Co. v. State of Mysore Ors. -1985 (19) E.L.T. 5 (S.C.) and Commissioner of Sales Tax v. Auriaya Chambers of Commerce - (1986) 18 STL 1 (SC). 13. In Commissioner of Sales Tax v. Auriaya Chambers of Commerce, it was observed as under :- "Where indubitably there is in the dealer legal title to get money refunded and where the dealer is not guilty of any latches and where there is no specific prohibition against refund, one shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no reason to disbelieve the affidavit of the petitioner. Since the petitioner has protested the charging of excise duty under sub-item No. (ii) of Tariff Item No. 26-AA but his request was not acceded and the respondents continued to charge duty under this item and the petitioners continued to pay duty under protest. But the contention of the petitioner has ultimately succeeded at the highest Tribunal under the Act. Therefore, the petitioner is entitled to interest from the date of payment of the duty @ 12% per annum. In Redihot Electricals v. Union of India Ors. the interest was allowed from the date of actual collection of duty at the rate of 12% per annum. 16. In the result, I allow this writ petition and S.B. Civil Writ Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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