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TMI Blog2005 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is not in dispute, that while allowing the appeal, learned CEGAT remanded the matter to the adjudication Commissioner of Central Excise for de novo consideration . The order of the learned Collector was set aside. Though it is a remand order for de novo consideration by the Commissioner of Central Excise, insofar as the appeal before the learned CEGAT is concerned, the matter can be said to have been finally disposed of setting aside the order of the learned Collector. The pre-deposit made by the petitioner u/s 35F is thus liable to be refunded with interest. A deposit u/s 35F is for availing the remedy of appeal. Such amount has to be returned when the appeal is allowed, as in the case on hand. As already noticed, pre-deposit amount of Rs. 28,00,000/- has been adjusted against re-adjudication demand. The question of interest and payment thereof alone has to be considered by the respondent authorities. Accordingly, the writ petition is allowed in part with a direction upon the respondents to pass orders for payment of interest in accordance with the concerned Circular referred to in the order of the Supreme Court in Commissioner of Central Excise, Hyderabad v. I.T.C. (supra) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration of the existing pre-deposit as pre-deposit for the present appeal and on the other hand, the assessee has been pressing the Department for refund of the said pre-deposit. The respondents have considered the existing pre-deposit as pre-deposit for the present appeal furnished by the assessee. It is further averred that as the matter has been remanded with certain directions for de novo proceedings, the petitioner cannot seek directions as prayed for without availing the alternative remedy. It is also contended that the application has not been made for granting refund in terms of Section 11B of the Act and that the petitioner failed to approach the proper authority. 5. Before we take up for consideration, the rival contentions, it would be appropriate at this juncture to refer to the judgments cited at the Bar, by Sri Kisore Rai, learned Counsel for the petitioner. 6. Delhi High Court in Elephanta Oil and Vanaspati Industries Ltd. v. Union of India [1994 (73) E.L.T. 43 (Del.)] considered the question with regard to the payment of interest on the amount of redemption fine refunded pursuant to the order of CEGAT. Interest was awarded in that case on the amount of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable and Court is competent to issue appropriate directions in exercise of its writ jurisdiction. 10. In Killick Caribonium v. Union of India [2002 (143) E.L.T. 491 (Bom.)], Bombay High Court has considered the question of refund of deposit made under Section 35F of the Act in the light of the doctrine of unjust enrichment. In that judgment, the contentions of Excise authorities, as in the case on hand, with respect to applicability of Section 11B of the Act have also been considered. Insofar as refund is concerned, it was held that since the Tribunal had decided the appeal filed by the Revenue, there was no impediment in the way of the respondents in granting refund. 11. With regard to the objections of the Excise authorities based on sub-section (2) of Section 11B of the Act, it was observed as under : ..... Contention seems to be that application under Section 11B of the Act for refund has to be filed and it would be necessary for the respondents to examine whether the amount has been collected from the customers by the petitioners. In this case this question does not arise because the amount was paid as a security deposit during the pendency of the appeal. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether the pre-deposit made as a pre-condition for the hearing of the appeal under the Central Excise Act, 1985 was, on the assessee being ultimately successful, refundable to the assessee with interest. The learned Solicitor General has taken instructions and has stated before this Court that the Central Board of Excise Customs proposes to issue a circular in connection with the payment of interest on all such pre-deposits. A draft copy of the proposed circular has been handed over to this Court. Having regard to the contents of the draft circular we direct compliance with the final order impugned before us and payment of interest in terms of the draft circular. The draft circular shall be appended to and the contents form part of this order. The appeal is disposed of. In view of this order any judgment of any High Court holding to the contrary will no longer be good law. 14. The observations, extracted supra, in the judgment of the Supreme Court put the controversy beyond doubt. Reference has been made to the circular, which, it was directed, shall form part of the order. In terms of the said judgment, pre-deposit made as a pre-condition for hearing of the appeal under the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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