Super Electronics Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:
central excise act, 1944 - section 11-bb--refund from authority by the order of the tribunal--delay in payment--petitioner claims interest - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. orders.l. saraf, j1. heard shri rajesh kumar, learned counsel for the petitioner and shri s.p. kesherwani appearing for the union of india.2. by this petition the petitioner claims payment of interest on the amount of refund under the provisions of section 11-bb of the central excise act, 1944 (hereinafter called as the act).3. the case of the petitioner is that by the order of the tribunal dated 28-8-1998 the petitioner succeeded in appeal and it became entitled to refund from authority concerned. however, since there was delayed payment of more than 3 months, the petitioner was entitled to get interest on the amount of refund. the same was denied by the tribunal vide order dated 28th august, 1998 by observing in para 11 of the order which reads as under: as regards the claim for interest for delayed refunds under section 11bb, we find that the said provisions applied to duty ordered to be refunded under section 11b(2). in the instant case, there is no order passed by the assistant commissioner under section 11b(2). the question of awarding any interest does not, therefore, arise.4. learned counsel for the petitioner submits that the aforesaid interpretation of the provisions of section is totally erroneous and is not in consonance with the provisions of the explanation to section 11bb of the act which provided that where any order of refund is made by the commissioner (appeals). appellate tribunals or any court against an order of the assistant commissioner of central excise under sub-section (2) of section 11b, the order passed by the commissioner (appeals), appellate tribunal or as the case may be the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.5. we find no ambiguity in the aforesaid provisions of explanation to provisions of section 11bb of the act. in the present case, admittedly, the petitioner was entitled to refund and the same was paid to it after more than 3 months. therefore, the petitioner is also entitled to interest on the said payment of refund. we direct the tribunal to allow interest on the amount of refund. consequently, we set aside the observations made in para 11 of the order dated 28th august, 1998 passed by the tribunal. the matter is remanded back to the tribunal to decide the quantum of interest which the petitioner is entitled.the matter is disposed of finally.

Judgment:
ORDER

S.L. Saraf, J

1. Heard Shri Rajesh Kumar, learned Counsel for the petitioner and Shri S.P. Kesherwani appearing for the Union of India.

2. By this petition the petitioner claims payment of interest on the amount of refund under the provisions of Section 11-BB of the Central Excise Act, 1944 (hereinafter called as the Act).

3. The case of the petitioner is that by the order of the Tribunal dated 28-8-1998 the petitioner succeeded in appeal and it became entitled to refund from authority concerned. However, since there was delayed payment of more than 3 months, the petitioner was entitled to get interest on the amount of refund. The same was denied by the Tribunal vide order dated 28th August, 1998 by observing in para 11 of the order which reads as under:

As regards the claim for interest for delayed refunds under Section 11BB, we find that the said provisions applied to duty ordered to be refunded under Section 11B(2). In the instant case, there is no order passed by the Assistant Commissioner under Section 11B(2). The question of awarding any interest does not, therefore, arise.

4. Learned Counsel for the petitioner submits that the aforesaid interpretation of the provisions of section is totally erroneous and is not in consonance with the provisions of the explanation to Section 11BB of the Act which provided that where any order of refund is made by the Commissioner (Appeals). Appellate Tribunals or any Court against an order of the Assistant Commissioner of Central Excise under Sub-section (2) of Section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or as the case may be the Court shall be deemed to be an order passed under the said Sub-section (2) for the purposes of this section.

5. We find no ambiguity in the aforesaid provisions of explanation to provisions of Section 11BB of the Act. In the present case, admittedly, the petitioner was entitled to refund and the same was paid to it after more than 3 months. Therefore, the petitioner is also entitled to interest on the said payment of refund. We direct the Tribunal to allow interest on the amount of refund. Consequently, we set aside the observations made in para 11 of the order dated 28th August, 1998 passed by the Tribunal. The matter is remanded back to the Tribunal to decide the quantum of interest which the petitioner is entitled.

The matter is disposed of finally.