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COMMISSIONER, CENTRAL EXCISE COMMISSIONE versus M/S JINDAL ELECTRICAL AND MACHINERY CORP

High Court of Punjab and Haryana, Chandigarh

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COMMISSIONER, CENTRAL EXCISE COMMISSIONE v. M/S JINDAL ELECTRICAL AND MACHINERY CORP - CEA-7-2004 [2006] RD-P&H 64 (9 January 2006)

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

C.E.A. No.7 of 2004

Date of decision: January 24, 2006.

Commissioner, Central Excise Commissionerate, Ludhiana

...Petitioner

Through

Mr. Ashwani Bansal, Advocate

v.

M/s Jindal Electrical and Machinery Corporation ...Respondent

Through

Mr. Kamal Bansal, Advocate

CORAM:
HON'BLE MR. JUSTICE D.K. JAIN, CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest. D.K. Jain, C.J. (Oral)

This appeal by the revenue under Section 35-G of the Central Excise Act, 1944 (for short the Act) is directed against order, dated 28th January, 2004, passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for short the Tribunal) in Appeal No.E/2576/2003-NB (SM). According to the revenue, following substantial questions of law arise out of the impugned order:-

"(a) Whether the amount pre-deposited by the assessee under Section 35-F of the Central Excise Act, 1994, in compliance with the directions of the Appellate Tribunal for further proceedings towards hearing of the Appeal, can be considered taken as the payment of duty?

(b) Whether the provisions of Section 11-BB regarding payment of interest on the amount of refund, apply to the pre- deposits made by the party under Section 35-F? (c ) Whether Hon'ble Tribunal, which is create of statute, can exercise powers which have not been conferred by the statute to it for awarding the interest on pre-deposits?" Since the issue sought to be raised by the revenue is purely legal, we deem it unnecessary to state the facts. Suffice it to note that the short issue involved is with regard to the payment of interest for delay in issue of refund of pre-deposit, after the decision of the Tribunal.

Since the issue is no more res-integra, we propose to dispose of this appeal at this stage itself. A similar question came up for consideration before the Supreme Court in Commissioner of Central Excise, Hyderabad v.

I.T.C. Ltd., 2005(179) E.L.T. 15. While disposing of various appeals on the basis of a circular, copy whereof was placed before their Lordships of the Supreme Court, it was directed that assessee shall be entitled to interest in terms of the said circular. While disposing of Civil Appeal No.791 of 2004, the Apex Court directed that interest on pre-deposit shall be paid commencing from three months after the final disposal of the dispute between the parties on merits.

In view of the said authoritative pronouncement, the impugned order, directing payment of interest from the date of the order of the Tribunal, cannot be sustained. In terms of the said judgment, the assessee cannot be entitled to interest in terms of the Circular No.802/35/2004-CX, dated 8th

December, 2004, commencing from three months of the date of the order of the Tribunal. It is ordered accordingly.

The appeal stands disposed of in the above terms.

[ D.K. Jain ]

Chief Justice

January 24, 2006. [ Surya Kant ]

kadyan Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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