MANOJ KUMAR GUPTA, J. - (1.) THE moot question in this writ petition is the date from which the Revenue is liable to pay interest on delayed refund of excise duty; is it from expiry of three months from the date of application for refund under Section 11B (1) or the receiving of assent of the President to the Finance Bill, 1995 in cases covered by proviso to section 11BB or from expiry of three months from the date of actual order of refund under section 11B (2) of the Central Excise Act, 1944 (for short 'the Act').
(2.) THE facts of the case as are relevant for determining the aforesaid question are that the petitioner-company became entitled for refund of a sum of Rs. 10,69,322.95/- as a result of its appeal being allowed by the Collector(Appeals) CEC, Ghaziabad by the order dated 3.5.1991, setting aside the adjudication order whereunder the amount in question was realised by making deductions from production incentive and MEG set off due to the petitioner. Application for refund was filed on 5.8.1991. It remained pending because of lackadaisical attitude of the authorities in spite of repeated reminders. It appears that the petitioner approached this Court by way of WP Tax No. 522 of 2009 raising grievance that its application for refund is not being decided and the writ petition was disposed of by order dated 25.2.2009 directing the Revenue to decide the claim of the petitioner for refund within three months from the date of production of a certified copy of the order. Consequent to the said direction, the Dy. Commissioner,CE, Div.,Gzd. passed an order dated 20.8.2009 rejecting the application for refund dated 5.8.1991. The aforesaid order was subjected to challenge in appeal by the petitioner. The Commissioner (Appeals), CCE,Ghaziabad allowed the appeal, by order dt.14.12.2009, with the following observation: "Thus, the adjudicating authority while deciding the above case appears to have not examined the issue in its entirety and in the right perspective. As indicated hereinabove, pursuant to the passing of a favorable order by the appellate authority, the appellants filed the refund claim on 5.8.1991, but the same was not disposed off till August, 2009. There is no explanation, much less reasonable explanation as to why such an inordinate delay (delay about 18 years) has taken place in disposal of the case. The appellant assessee should not suffer on account of such attitude of the lower authorities. The impugned order of the adjudicating authority being devoid of merits, as discussed supra is accordingly set aside. The appeal is accordingly allowed with consequential relief to the appellants, if any, as discussed supra.". The aforesaid order of Commissioner (Appeals) dated 14.12.2009 attained finality and in pursuance thereof a sum of Rs. 10,69,322.95/- was sanctioned and refunded to the petitioner by a cheque dated 5.8.2010. Since no interest was paid to the petitioner on the said amount, the petitioner by application dated 11.11.2010 represented before the Assistant Commissioner (Central Excise), Ghaziabad for payment of interest for the period 1.4.1985 to 30.6.2010. When no action was taken on the said application, the petitioner has approached this Court by way of the present writ petition for a direction to the respondent-authority to calculate and pay interest to the petitioner for the aforesaid period as per provisions of section 11BB of the Act. The Revenue has filed a counter affidavit in which several objections have been taken rebutting the claim of the petitioner. First being plea of alternative remedy of appeal under section 35(1) of the Act. It has been stated that pursuant to the order dated 14.12.2009 passed under section 11B(2) of the Act by the Commissioner(Appeals), the order for refund was passed on 7.6.2010 followed by the corrigendum dated 5.8.2010 and whereby no interest was paid to the petitioner and therefore the aforesaid orders should have been challenged by the petitioner by filing an appeal and the writ petition should be dismissed on the ground of availability of the alternative remedy. Secondly, in para-35 of the counter affidavit, the respondents have tried to explain the reason why the authorities refused to sanction interest in the following words:- "The officer sanctioning the refund considered the date of order passed by the Commissioner (Appeals), Ghaziabad to be relevant date for the sanction of refund. Perhaps, in view of provisions of Explanation to Section 11BB of the Central Excise Act, 1944, the interest was not granted." Thirdly, it has been further contented that in any view of the matter, petitioner is not entitled to interest prior to 26.8.1995 in view of the proviso to section 11BB of the Act.
(3.) IN rebuttal, it has been submitted that the orders dated 7.6.2010 and 5.8.2010 are only administrative orders sanctioning the refund pursuant to the order dated 14.12.2009 passed by the Commissioner (Appeals) under section 11B (2) of the Act, and without any fetter for payment of interest and and therefore it is not possible for the petitioner to file an appeal against a non-existent order. It has been further stated in the rejoinder affidavit that in any case, since there is already an order for refund under section 11B(2) of the Act and which has attained finality and consequently there can be no justification on part of the authorities in declining to grant interest to the petitioner in spite of it being a statutory liability since after insertion of section 11BB by Finance Act 1995.;