9911796707
TMI Blog1995 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... with Bharat Heavy Electricals Ltd., (BHEL), Ranipet for supply of Electro Static Precipitator (hereinafter called as ESP), by virtue of Notification No. 78/90, dated 20-3-1990 ESP being a pollution Control Equipment, is entitled to concessional rate of duty at 5% ad valorem provided the necessary certificate is given by the Ministry of Environment and Forests. BHEL manufactured ESP and claimed exception under the above notification. As the certificate from the Ministry of Environment was awaited BHEL had to clear the ESP on payment of full duty at 15% ad valorem. The certificate from the Ministry was received subsequently and it was clarified that ESP would be liable only at the rate of 5% BHEL then claimed a refund of excess duty paid on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against this order, but appeared before the 3rd respondent once again. In the second round of litigation the 3rd respondent once again rejected the claim. He held that ESP cleared by BHEL did not attain the essential characteristics of finished ESP under Rule 2(a) of the Rules of Interpretation. Because of this BHEL had been called upon to pay duty on ESP at 15%. But in the refund proceedings it was said that the product which was cleared was not ESP at all. Therefore, the petitioner filed an appeal to the 2nd respondent for the second time. Meanwhile, the Central Board of Excise and Customs through a circular stated that the ESP, cleared in a knocked down condition would be eligible for concessional rate of duty even though the entire ES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor (Appeals) Madras and grant consequential relief for refund of the aforesaid sum of Rs. 27,74,339/-. Learned counsel contended that the Department has denied the refund on the ground that since the Department has already preferred an appeal against the order of the 2nd respondent the petitioner will not be entitled for refund unless and until a final adjudication is made by CEGAT, Southern Regional Bench. I am unable to countenance the said contention of learned counsel for the respondents. The mere fact that the order of the Appellate Authority is not acceptable to the Department and that it is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. It is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Department and the other for the assessees. They must act fairly and genuinely. If the petitioner is lawfully entitled for any refund of the money which has already been paid, the amount due by way of refund shall be refunded within a resonable time. In this case money has not been refunded in spite of the order of the Appellate Authority dated 14-10-1994. The petitioner claimed refund of Rs. 27,74,339/- together with interest at 18% per annum. I am of the view that interest at 18% per annum now claimed is on the high side. Even under Section 11BB interest at the rate of 15% is payable for refund cases. Therefore, the 3rd respondent is directed to refund Rs. 27,74,339/- together with interest at 15% per annum to the petitioner. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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