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TMI Blog1993 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ition valid for 10 days for the time being with liberty to apply for extension on notice to the other side. Mr. Meharia will hold the said amount and until further order of this Court. Receiver and all parties to act on a signed copy of the minutes." Thereafter, a further order was passed by the learned Judge on 20th June, 1978 which is to the following effect :- "Respondents will deposit amount of excise duty in respect of the clearance made by them from 1st July, 1978 with Mr. M.P. Meharia who has been appointed Receiver and Mr. M.P. Meharia would hold the same in separate accounts (and will invest the same ) and will keep the respondents' Advocate-on-Record informed of the deposit made from time to time. The petitioner would be at liberty to clear the goods in terms of the earlier order upto 30th June, 1978. The balance amount lying unadjusted out of the said deposit of Rs. 1,50,000/- will continue to be held by Mr. M.P. Meharia subject to this verification the interim order passed will continue till the disposal of the application. Affidavit in opposition within 4 weeks. Affidavit-in-Reply within 2 weeks, thereafter, and the matter adjourned till one week thereafter." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear before me as "Part Heard" for further orders on 21st February, 1990. No effect is to be given to the orders passed by the Adjudicating Officer and/or the appropriate officers of the Excise Department until further orders of this Court. So far as the monies lying with Mr. M.P. Meharia, Advocate who was appointed "Receiver" in this matter are concerned, I appoint Mr. P.K. Bose, Advocate appearing on behalf of the Excise Authorities as a Joint Receiver along with Mr. M.P. Meharia. The monies and fixed deposits held by Mr. M.P. Meharia shall be deemed to be in the joint possession of the Joint Receivers from the date of this order. All further renewals of the fixed deposits which are at present held in the name of Mr. M.P. Meharia, the present Receiver are to be renewed from time to time in the names of the Joint Receivers until further orders of this Court. The interim orders are modified to the above extent. All parties including the Central Excise Authorities to act on a signed copy of the minutes of this order on usual undertaking." 6. It may be mentioned that the order or adjudication was made by the Collector of Central Excise on 16th May, 1990 and the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty since 1978 and on that basis the writ petitioner's goods were released." So far as the instant writ petition is concerned Mr. Mitra submits that his client does not intend to press the same any more and as such, the same is dismissed as not pressed. It is made clear as prayed for by Mr. Mitra that this order will not in any manner prejudice the Writ petitioner's rights if any to appeal from or to apply for revision or review of the said adjudication order in accordance with law. The amounts which are now lying with the Joint Receivers were paid towards the satisfaction of the excise liabilities of the petitioner as and when the said liabilities arose. The said amounts have been kept in fixed deposits since 1978 onwards, and have been earning interest. In the premises the Excise Authorities are entitled to the entire interest which has accrued on the same on and since the date the amounts were so deposited by the writ petitioner with the Receiver and/or Receivers and whatever interest has accrued due thereon will go to the Excise Authorities. The Excise Authorities will be entitled to the payment of the sum of Rs. 42,26,546.25 from out of the principal amount deposited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Authorities towards part satisfaction of the total dues of the writ petitioners as per adjudication order of the Excise Authorities as mentioned in the earlier order dated the 10th day of December, 1990 and this Court being of opinion that the balance of the amount lying with the Receiver, is admittedly the usufruct of the said deposit of Rs. 38,20,000/- (Rupees Thirty eight lakhs Twenty thousand only) which was paid in lieu of the excise dues pending hearing of the writ petition and the sum goes to the party which has been held to be entitled to the said sum of Rs. 38,20,000/- (Rupees Thirty eight lakhs Twenty thousand only), i.e. the excise authorities. And so far as the shortfall in the deposit made by the writ petitioner, as mentioned hereinabove is concerned, and upon the submission made on behalf of the writ petitioner that some moneys were also paid on their behalf to the Excise Authorities directly during the relevant period, i.e. during the pendency of the writ petition towards liabilities cover by the order of excise authorities this court makes it quite clear that the excise authorities shall be entitled to realise the said sum of Rs. 4,06,546.25 (Rupees Four lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est the same in a Fixed Deposit Account for 181 days in a nationalised bank and/or renew the same upon maturity of the existing fixed deposit. As the appeal involves a short point of law, it is not necessary to file Paper Book and the same is dispensed with. Notice of Appeal is waived. The stay petition is treated as the Paper Book. If there is any other paper or document which was relied on in the writ court, along with the judgment and the order appealed from the same shall be included in the supplementary paper book which will be filed within a period of fortnight from this date. Liberty is given to the parties to apply for early hearing upon filing of the Supplementary Paper Book. The Registrar, Original Side of this Court is directed to furnish the Advocate on Record for the Appellant with a certified copy of the order and the judgment appealed from an expeditiously as possible. The Joint Receivers shall retain the sum of 200 [....] each out of the money lying in their hands. Liberty is given to apply for early hearing. The Joint Receivers, the Registrar, Original Side and the parties to act on a signed copy of this dictated order on usual undertaking." 12. The onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly the Show Cause Notice was barred by limitation. 15. In the case of Ballarpur Industries Ltd. v. Union of India of Others reported in 1987 (30) E.L.T. 267 (Bom.) it has been held by the Division Bench of the Bombay High Court as under : "Before we part with this case, it is to be noted that the respondent has filed an application claiming for interest on the total assessment. We do not find that there is any statutory provision for claiming such interest on the amounts due unlike the one available under Income Tax Act, 1961. It is further to be noted that in the interim directions given by this Court after due hearing given to the respondents on 14-12-1981 and 13-1-1982, no such directions regarding the interest was given by this Court. The format which was issued in pursuance to the directions of the Supreme Court and the language adopted therein cannot afford a right to demand interest on the respondents, since the respondents never pressed for interest during the entire pendency of this petition. Moreover, the relief of interest is discretionary. We, however, find that there has been a bona fide dispute between the parties regarding the correct assessment and also in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng which there was stay of the show cause notice in pursuance whereof duty was sought to be levied from 1st July, 1978 on the Transformer oil, there could not have been any determination as regards liability to pay duty on the Transformer oil. Investment which was directed to be made of the money lying with the Receiver was to protect the interest of the appellant as in the event if it was ultimately held that no such duty was leviable, then the appellant would have got back the entire money with interest accrued thereon. This is only on the footing that such money until liability is determined regarding payability of excise duty on the product, remains as security deposit and retains its character as such. As indicated earlier, there is no provision for payment of interest. Duty is payable as soon as manufacture is made. But here the question was whether the Transformer oil is a product which would attract excise duty or not. Accordingly the respondents issued show cause notices which had been challenged and stay was obtained. It is only after the stay is vacated and the adjudication is made, the question of payment of duty would arise. As a matter of fact by the order dated 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest by the appellant, as excise duty for the period 1978 to 1982 determined to be payable was not paid even after the order of adjudication was made on 16th May, 1990. 19. Having regard to the facts and circumstances of the case, we are of the view that excise authorities should be paid interest on the aforesaid amount of Rs. 42,26,546.25 only from the date of adjudication order, that is to say, 16th May, 1990 till the date of payment at the rate of 18% per annum. This is the period during which excise duty levied could not be collected because the money was lying with the Receivers. The interest which we hold payable is no statutory interest. On the date of adjudication the deposit stands appropriated towards the duty payable and the money in deposit to the extent of duty becomes the money of the Exchequer of which the accretion by way of interest should also belong to it. We, therefore, dispose of the appeal by holding that Excise authorities shall be entitled to interest at the rate of 18% per annum from 16th May, 1990, being the date of adjudication, on the said sum of Rs. 42,26,546.25 till the date of payment. The Joint Receivers upon such calculation shall pay such interes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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