AFCONS INFRASTRUCTURE LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal has been preferred against the order of the Commissioner (Appeals) made on 25.08.2004 upholding the order dated 11.12.2003 made by the Assistant Commissioner holding that interest cannot be granted on the refund amount of the pre -deposit and further that it could not be granted also because the refund was sanctioned within the stipulated time of three months.

(2.) IT appears that the appellant had made a refund application on 30.6.2003 for refund of the pre -deposit amount of Rs. 4,30,000/ -. The said amount was deposited on 15.10.1994 as pre -deposit under Section 35F of the Central Excise Act, 1944, on the direction of the Tribunal in the context of the hearing of the appeal which involved the question whether excise duty was payable on 'Caisson Gate'. The Tribunal had allowed the appeal by its order dated 14.5.2003 [reported in 2003 (156) ELT 56 (Tri. Del)] and the assessee became entitled to the refund of the pre -deposit amount. The said application dated 30.6.2003 was, therefore, submitted seeking the refund of the pre -deposit amount with interest. Pursuant to the said application, the pre -deposit amount of Rs. 4,30,000/ - was ordered to be refunded and such refund came to be sanctioned under Section 11B of the said Act. The cheque of the said amount was forwarded with the sanctioned order dated 14.8.2003 made by the Assistant Commissioner.

(3.) THE learned Counsel appearing for the appellant has contended that the law laid down by the Hon'ble the Supreme Court in Kuil Fireworks Industries v. CCE , wherein interest was awarded on pre -deposit which was refunded was binding on all Courts in view of the provisions of Article 141 of the Constitution of India, and therefore, since the Hon'ble the Supreme Court awarded interest in the case of refund of pre -deposit, interest could be awarded from the date of the making of such deposit pursuant to the order of the Tribunal/Court. It was submitted that since the amount was deposited pursuant to the condition of interim stay, it was in the interest of justice to award interest on such amount which became refundable by virtue of the decision of the Tribunal holding that 'Cassion Gate' was not excisable goods. It was argued that since the appellant was deprived of the use of his amount which was required to be pre -deposited, and had suffered a loss of interest thereon, it was incumbent on the authorities to refund the amount with interest. He further submitted that on the doctrine of stare decisis the proposition that interest should be awarded in such cases adopted by the decisions of the Tribunal and Courts should be followed, exhorting this bench 'to show courage to do justice'. The learned Counsel placed heavy reliance on the circular dated 8.12.2004 (CBE &C Circular No. 802/35/2004 -CX), more particularly on paragraph 5 thereof in which it was, inter -alia, stated that all concerned were requested to note that default will entail an interest liability, if such liability accrues by reason of any orders of the CESTAT/Court, such orders will have to be complied with, and it may be recoverable from the concerned officers.