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TMI Blog2007 (8) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 11B of the Act merely because it uses the expression 'refund of duty' because delayed payment of duty itself attract the payment of interest which is inextricably associated with duty. Moreover, such a collection of interest on account of delayed payment of duty would be unauthorised imposition of tax which is impermissible by the provisions of Article 265 of the Constitution. There is, thus, no merit in this appeal. W.P. dismissed. - 2 of 2007 - - - Dated:- 23-8-2007 - M.M. Kumar and Ajay Kumar Mittal, JJ. [Judgment per : M.M. Kumar, Member (J)]. - This appeal filed by the appellant-revenue under Section 35G of the Central Excise Act, 1944 (for brevity, 'the Act'), prays for quashing order dated 29-6-2006, passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Tribunal and the order passed by the Commissioner (Appeals) has been set aside by the Tribunal vide final order dated 29-6-2006 (P-3) and the appellant-revenue has been directed to refund the excess amount of interest paid by the respondent-assessee to the extent of period from 13-5-2002 to 26-6-2002. The operative part of the order passed by the Tribunal reads as under :- "Considered the submissions made at length by both the sides and peruse the records. It is not disputed that interest payable by the appellants on differential duty confirmed against him after the final assessment of the clearance made by them under provisional assessment. Interest payable during the relevant period was 24% per annum but on 13-5-2002 notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act; Provided further that the limitation of one year shall not apply where any duty has been paid under protest". 7.A perusal of the aforementioned provision shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction or direction by the Board under section 37B, and such amount of duty payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction as the case may be, no interest shall be payable and in other cases the interest shall be payable on the whole of the amount, including the amount already paid. The provisions of sub-section (1) shall not apply to cases(2) where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. Explanation 1. Where the duty determined to be payable is reduced by the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation. - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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