Thermo Electric Madras Manufacturing vs Collector of C. Ex.

K.S. Bhakthavatsalam, J.—The prayer in the writ petition is to issue a writ of mandamus to direct the respondents herein to recalculate the

demand of duty as against the petitioner herein in pursuance of the order of the Customs, Excise and Gold (Control) Appellate Tribunal, in Order

No. E/788/90-D, dated 20-09-1990 [reported in 1991 (54) ELT (Tri.)], and to grant refund of excise duty and to further direct the respondents

to pay interest thereon at 18% from the date collection till the date of actual payment. The petitioner having got an order in its favour from the

CEGAT dated 20-09-1990 is before me with the abovesaid prayer.

Notice of motion has been ordered by me on 10-07-1991 and Mr. Jayachandran appears for the respondents.

After hearing Mr. Arvind P. Datar, learned counsel for the petitioner, I find, the Tribunal passed an order on 20-09-1990 and the petitioner has

also claimed refund on 15-02-1991 of certain amount as per the order of the Tribunal. The operative portion of the order of the Tribunal reads,

Penalty is set aside. Demand of duty, if any, to be recalculated with consequential relief to the appellants, if any.

Based on this, the petitioner seeks refund of the amount already paid.

On the other hand, Mr. Jayachandran, learned counsel for the Department states that the order of the Tribunal was served on the Department

on 21-01-1991 and all the papers were sent to Delhi for preferring an appeal before the Supreme Court on 25-02-1991 and suggests that an

appeal could have been filed in the Supreme Court.

Considering the limited scope of the prayer in the writ petition, I am not able to accept the submission made by Mr. Jayachandran, learned

counsel for the Department. The order has been served on the Department on 21-01-1991. The limitation provided under the Act is 60 days from

the date of receipt of the order. The papers were sent to Delhi one month before the expiry of the period of the limitation. But, even today, there is

no information available to the Department here at Madras whether an appeal has been preferred and stay has been obtained. I have already taken

the view, in sales tax matters, mere filing of an appeal is no good for denying refund to the assessee. In this case also, merely by saying that the

Department is taking steps or has taken steps to file an appeal before the Supreme Court, will not satisfy this Court. Unless the Department files an

appeal and obtains stay, I think, the Department has got a duty to consider the application of the petitioner for refund and recalculate the demand

of duty as against the petitioner in pursuance of the order of CEGAT dated 20-09-1990. In view of this, a direction shall issue to the respondents

to re-calculate the demand of duty as against the petitioner in pursuance of the order of the CEGAT dated 20-09-1990 and to grant refund of

excise duty, within two months from the date of receipt of a copy of this order. The petitioner has claimed interest at 18% on the duty which is to

be refunded to the petitioner. Considering the facts and circumstances of this case and the provision for interest in other revenue enactments, I am

of the view that interest at 18% has to be given to the petitioner on the amount to be refunded to the petitioner from the date of collection till the

date of actual payment.

The writ petition is accordingly allowed. No order as to costs.