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1985 (7) TMI 114

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..... 81 to December, 1982, the petitioner generated and supplied various quantities of electrical energy for agricultural purposes in the State on which also, it had paid a sum of Rs. 2,02,90,938.44 or so to the Union Government as excise duty under the Central Excises and Salt Act, 1944 (Central Act No. 1 of 1944) ("the Act") though payment of such duty was exempted by Government. 3. Sometime in 1984 or earlier, the petitioner made an application before the Assistant Collector of Central Excise, Lalbagh Division, Bangalore ("Assistant Collector") for refund of the whole of the excise duty paid on the electricity generated and supplied for agricultural purposes in terms of the relevant notification issued thereto by Government who on 10th Janu .....

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..... ain resisting the same on more than one ground. 5. Shri C.R. Sridhar, learned counsel for the petitioner, contends that so long as the appellate order made by the Collector was in force, his client had a legal right for payment of the refunds and the Assistant Collector had a corresponding legal duty to refund the amounts without procrastinating and concerning himself with the appeal filed by the Revenue before the Tribunal and therefore, the Assistant Collector should be directed to refund the amounts with interest thereon at the bank rate as was done by the Supreme Court in Elpro International Limited, and Others v. Joint Secretary, Government of India, Ministry of finance and Others -1985 (19) E.L.T. 3 (S.C.). 6. Shri K. Shivashankar .....

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..... he same. 8. The Act, in particular Section 35F on which reliance is placed by Shri Bhat, nowhere provides for not implementing a lawful appellate order on the ground that the Revenue proposes to file an appeal or had actually filed an appeal before the Tribunal. In the absence of a statutory provision which expressly provides for non-implementation of the order of the Collector till the second appeal filed by the Revenue is heard and disposed of by the Tribunal, the Assistant Collector is in duty bound to implement the order of the Collector. So long as the order of the Collector is in force, the petitioner has a legal right to claim for its implementation. On any principle, it is not possible to hold that this right acquired by the petit .....

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..... y provision which is also the position in the Act, this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution cannot direct payment of interest. In my view, on the very principles found in Mamle Desai's case, the claim of the petitioner for payment of interest cannot be granted by me. 14. On the foregoing discussion, it follows that the claim of the petitioner except to the extent of interest has necessarily to be accepted by this Court. 15. In the light of my above discussion, I direct the Assistant Collector-respondent to implement the order made by the Collector on 19th July, 1984 (Annexure-A) and make payment of the amounts that are found due to the petitioner in terms of the said order with all .....

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