9911796707
TMI Blog2007 (2) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... It has engaged in the business of manufacture and sales of articles of glass fiber and glass wool. According to it these articles fall under Chapter 70 of the Schedule of the Central Excise Tariff Act, 1985. Disputes arose between the petitioner and respondent no. 2 regarding classification and valuation of articles/goods manufactured by it. In respect of first dispute, according to the petitioner, the Assistant Collector, Central Excise, Division III, Ghaziabad vide order passed on 14th May, 1992 had held that a sum of Rs. 7110431/- became refundable to the petitioner. The second dispute was settled by the Commissioner (Appeals) Central Excise, Ghaziabad vide order dated 29th May, 1992 wherein a sum of Rs. 41396.32 was found to be refundable to the petitioner. The third dispute was settled by the Assistant Collector, Central Excise Division IV, Ghaziabad vide order dated 21st September, 1990 wherein a sum of Rs. 238668.88 was found to be refundable to the petitioner. Pursuant to the orders passed by the authorities the petitioner filed three separate applications seeking refund of the respective amounts. The first application seeking refund of Rs. 7110431/- was filed on 6th Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been settled by the year 1992 wherein the authorities have directed for the refund of the excess amount paid by the petitioner. The claims of refund made by the petitioner on 26-2-91, 16-11-92 and 18-12-92 were illegally rejected by the Central Excise Authorities on the plea of unjust enrichment. The Apex Court vide order dated 21-2-2005 had held that the question of unjust enrichment does not arise in the case of provisional assessment. According to him the withholding of refund on an erroneous view taken by the respondents, cannot be said to be justified or correct and, therefore, interest is payable in terms of Section 11BB of the Act with effect from 26th August, 1995 at the applicable rate. He further claimed that the amount of interest has been illegally withheld and the petitioner has been deprived of use of its own money for a considerable period. The respondents are liable to compensate the petitioner by making payment of interest over the amount of interest from 14th November, 2005 till it is paid. In support of various pleas raised herein, he has relied upon the following decisions : 1. Hamdard (Wakf) Laboratories v. Union of India - 2005 (188) E.L.T. 476 (All.) 2. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled by the authorities on 21-9-1990, 14-5-1992, 29-5-1992. The authorities have found that a sum of Rs. 2,38,668.88, 71,10,431.00 and 41,396.32 respectively is refundable to the petitioner. The petitioner had filed claims for refund on 26-2-91, 6-11-92 and 18-12-92 in respect of the aforesaid amount. The claims of the refund were rejected by the authorities on 24-9-96, 10-10-96 and 31-3-97. A series of litigation took place between the parties and ultimately the Apex Court vide order dated 21st February, 2005 had set aside the orders rejecting the claims of refund on the ground of unjust enrichment by following the decision in the case of Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. 2004 (166) E.L.T. 3; wherein it had held that the question of unjust enrichment does not arise in the case of refund consequent upon finalization of provisional assessment under Rule 9B of the Central Excise Rules, 1944. 10. The petitioner vide letter dated 5th March, 2005 had requested the Assistant Commissioner, Central Excise Division-V, Noida to make payment of the claims made on 6th November, 1992, 26th February, 1991 and 18th December, 1992. The contents of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Admittedly, in the present case, it is not in dispute that the claim for refund was made on 25th August, 1999 whereas the order for refund has been passed on 16th November, 2000. Under the provision of Section 11-BB of the Act, interest start running after three months from the date of the application irrespective of the fact as to whether the order for refund has been made subsequent to the period of three months. As in the present case, the order for refund has been made on 16th November, 2000 i.e. much after the expiry of period of three months from the date of making the application, therefore, the respondents are liable to pay interest at the specified rate therein. Liability for payment of interest is statutory and, therefore, it was the bounden duty of the Assistant Commissioner of Central Excise, Division-I, Ghaziabad to also pay interest from 26th November, 1999 to 15th November, 2000 at the rate specified under section 11 -BB of the Act." 13. the case of J.K. Cement Works (supra) the Rajasthan High Court has held as follows : "21. The perusal of Section 11B goes to show that it prescribed a period within which the amount of refund can be claimed by the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made prior to the insertion of Section 11BB in the Act interest starts running from that date i.e. 26th August, 1995 till it is actually paid. 15. In the case of Sandvik Asia Ltd (supra) the Apex Court has held that that if the revenue takes erroneous view of the law, that cannot mean that the withholding of monies is justifiable or not wrongful. There is no exception to the principle laid down for an allegedly justifiable withholding. The exception made by the respondents for not making refund was only on the ground of unjust enrichment. The Apex Court in the case of the petitioner in the proceeding for refund had held that the question of unjust enrichment in the instant case does not arise. It is to be remembered that the Apex Court only declares law and the declaration would be treated as law of land, therefore, withholding of refund by the respondents on erroneous view cannot be said to be justifiable. The respondents have, therefore, exposed themselves to the liability of payment of interest in terms of Section 11BB of the Act. 16. So far as the question of claiming interest on the amount of interest is concerned, we may mention here that there is no pleading in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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