PADMINI POLYMERS LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) These two appeals, filed by M/s. Padmini Polymers Ltd. and the Revenue, are arising out of the same Order -in -Appeal No. 68/2003, dated 17 -2 -2003 passed by the Commissioner (Appeals).

(2.) Briefly stated, the facts are that M/s. Padmini Polymers are having manufacturing units at Sahibabad and Patparganj with the registered office at Okhla Industrial Estate Phase -II, New Delhi. The officers of the Directorate General of Anti -Evasion searched their manufacturing units and other offices on 7 -10 -97. During the course of investigation, M/s. Padmini Polymers Ltd. deposited Rs. 50 lakhs in Punjab National Bank, Okhla Industrial Estate Phase -II, New Delhi; that subsequently, a show cause notice, demanding duty of Rs. 7,69,90,751/ -, was issued to them which was dropped by the Commissioner (Adjudication), Delhi as far as the demand of duty was concerned. Subsequently, the assessee filed a refund claim for Rs. 50 lakhs with the Deputy Commissioner, Division -II, Ghaziabad, within whose jurisdiction, their Sahibabad unit falls. The Deputy Commissioner, in the Memorandum dated 30 -4 -02, rejected their refund claim on the grounds that the amount was not deposited in the jurisdiction of Ghaziabad Division as the address of the assessee on TR -6 challans was of their registered office at New Delhi; the name of the collecting Bank and focal point bank has been shown of Delhi and not of Meerut Commissionerate and their letter dated 29 -12 -97, addressed to the Chief Accounts Officer, Delhi informing him to treat the said deposit in their account under Meerut Commissionerate, is no proof that the amount has been transferred to Meerut from Delhi. The Commissioner (Appeals), however, in the impugned order, has held that as they had not been found liable for payment of duty by the Commissioner (Adjudication), they are entitled for refund of duty; that as per provisions of Rule 173S of the Central Excise Rules, 1944, the refund claim has to be filed before the jurisdictional Deputy Commissioner, Incharge of the factory; that there is no provision under the Central Excise Act or Rules that the refund claim should be filed only before the Deputy Commissioner, within whose jurisdiction the bank where the deposit was made, is located. The Commissioner (Appeals) also observed that it is entirely an administrative matter to decide which bank will collect the duty and which bank will act as focal point bank. He, therefore, did not find any logic in rejecting the refund claim on the ground that the deposit was made in Delhi and not in a bank under the jurisdiction of Meerut Commissionerate. Against this finding of the Commissioner (Appeals), the Revenue has come in appeal before us.

(3.) The Commissioner (Appeals), however, in the impugned order, did not allow the interest to the assessee under Section 11BB of the Central Excise Act holding that the interest on delayed refund occurs only if any duty ordered to be refunded under Section 11B(2) has not been paid within three months after such valid refund order and as no refund order has been passed, claim of refund is not acceptable. M/s. Padmini Polymers have come in appeal against disallowance of interest.