CCE Vs. M/S. MAHAVIR CRIMPERS

JUDGEMENT

(1.) THIS appeal is filed by the Revenue against order in appeal No. BC/124/SURAT -II/2011, dt. 10.06.11. Brief facts of the case in brief are that the appellant opted for SSI exemption w.e.f. 10.07.94 and paid concessional rate of duty under Notification No. 1/93 -CE dated 28.2.03, which was objected by the department that the concessional benefits under the said notification cannot be opted at any time in the middle of the year as they were paying full rate of duty. The appellant paid the differential duty amounting to Rs. 7,21,793/ - under protest. The appellant filed the refund claim of the duty paid subsequently. The appellant's claim of refund was rejected by the JAC vide OIO No. 52/REFUND/96 dated 17.09.96. In appeal, the Commissioner (Appeals) directed the JAC to re -determine the amount. The JAC re -adjudicated the case and rejected the refund claim. The appellant again fired the appeal with the commissioner (Appeal), who remanded the case back for de -novo adjudication. The JDC re -adjudicated the case and rejected the claim. The appellant again filed appeal against the said order which was also rejected by the Commissioner (Appeal). In appeal, the CESTAT remanded the case to the Commissioner (Appeals) to decide the matter afresh in view of findings that the issue of availability of SSI exemption is settled by Hon'ble High Court in case of Dhanlaxmi Texturising Vs. UOI reported in, 2005 (179) ELT. The commissioner (Appears) allowed the appeal of the appellant vide his order No. MS/22SRT -II/08 dared 12.02.08. Accordingly the appellant requested the JAC to grant the refund and the amount was granted by the JAC vide his order No. ANK -III/BCP/195 dated 27.02.08 without any interest under Section 11B and as per Board's circular No. /61/2002 -C.EX dated 01.10.02. The appellant requested the JAC on 13.10.08, for grant of interest and the JAC vide his order No. ANK/BCP/271/REFUND/2008 dated 22.01.09 sanctioned the interest amounting to Rs. 28,120/ - from the date of final order i.e. 12.02.08 to 05.10.08. The appellant was paid remaining amount of interest amounting to Rs. 8,78,293/ - and did not order any interest on the amount of interest paid belatedly as requested by the appellant vide OIO No. ANK -III/RSR/151/Refund/10 -11 dated 13.09.10.

(2.) AGGRIEVED by such an order, the assessee preferred an appeal before the first appellate tribunal. The first appellate authority after following the due process of law, set aside the impugned order and directed the lower authorities to pay interest on belated payment of interest to the assessee.

(3.) LD . D.R. would take me through the facts of the case and order -in -appeal. He would then submit that the issue is now settled by the Larger Bench of the Tribunal in the case of Sun Pharmaceuticals Industries Ltd. : 2005 (185) ELT 253 (Tri. LB). He would produce the copy of the said judgment of the Larger Bench for my perusal. He would also rely upon the judgment of the Hon'ble High Court of Madras in the case of VBC Industries Ltd. : 2011 (270) ELT 314 (Mad.) for the same proposition that interest on belated payment of interest is not envisaged in the indirect taxation.