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TMI Blog2002 (3) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... t court but the subject matter herein is unjust enrichment by the governmental authority in withholding such sum. Therefore, I hold that writ court can entertain try and determine the issue hereunder. Moreover, at the interim stage the authority was approached by the petitioners for having refund on the basis of any interlocutory order passed by a bench of this court which was acted upon by them and the refund of the principal sum of Rs. 10,00,000/- was made. 3.Therefore, the main issue in final hearing is whether refund of such sum will be made with interest or without interest. If such sum is directed to be refunded with interest what would be the rate and the cut off date from which it will be paid with consequential reliefs. The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. State of Bihar) it was held that in case of refund of levy held by any authority will be made with interest and rate of interest was fixed @ 12% p.a. Such payment was directed to be paid along with costs. However it appears to this court that in all the cases writ jurisdiction of the court were invoked for the purpose of redressal of such grievance and the courts uniformly held in favour of refund with interest. 6.Then the next question arose what would be the rate of interest? Mr. Chakraborty submitted that the Parliament by way of amendment of Section 80 of the Negotiable Instruments Act provided that calculation of rate of interest will be 18% per annum when the rate is not so fixed. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid. 8.In reply thereto learned counsel appearing for the petitioners contended that unauthorized levy is the main cause which has been resulted to an appeal whereunder the pre-deposit was made in connection with such unauthorised levy. Therefore, it would be wrongful to say that the pre-deposit is totally unconnected with an unauthorised levy. Hence, they are entitled to get refund of such sum as directed by the CEGAT (Customs, Excise and Gold (Control) Appellate Tribunal along with interest. 9.Upon hearing the rival contentions of the parties I am of the view that a valid question of law is involved hereunder. In the court of Equity the prime question is to consider the equitable justice provided valid question of law is involved. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coming under one umbrella i.e. "refund". There is specification under the law that the pre-deposit cannot be regarded as "refund". If appellate authority or Tribunal held that amount so deposited cannot be withheld but will be refunded, the governmental authority cannot be held to be privileged person in refunding the same without interest. 12.Now the second question is what would be the rate of interest. 13.So far the refund in any form including the refund of pre-deposit is concerned, there is no fixed rate of interest to be declared as appropriate. In 1997 (95) E.L.T. 3 (S.C.) (Kuli Fireworks Industries v. Collector of Central Excise) Supreme Court held that the pre-deposit made by assessee to be returned to him with interest @ 12% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is that what would be appropriate date from which calculation will be made? Obviously it will be calculated from the date of the last order. Such last order will be the date of the order of CEGAT or any further order finally passed by any court whereunder the order of CEGAT was challenged. In the instant case since the order of the CEGAT reached its finality, interest will be paid from such date i.e. 3rd January, 2001 till realisation. To avoid further increase of amount on account of interest, the payment on such account is directed to be made to the petitioners within one month from the date of the communication of the order. 16.Thus, the writ petition stands disposed of. 17.No order is passed as to costs either for this appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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