Ranbaxy Laboratories Limited vs Union Of India And Others
2009 Latest Caselaw 5298 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP (C) No. 13940 of 2009


%                                          Decided on: December 18, 2009


RANBAXY LABORATORIES LIMITED                                    . . Appellant

                   through :                 Mr. M.P. Devnath with
                                             Mr. Abhishek Anand, Advocates


             VERSUS

UNION OF INDIA AND OTHERS                                    . . . Respondents

                   through :                 Mr. S.K. Dubey with Mr. Amit
                                             Chadha and Mr. Vanshdeep
                                             Dalmia, Advocates for the
                                             respondent Nos. 1 & 2.

                                             Mr. Mukesh Anand with
                                             Mr. Shailesh Tiwari, Mr. Sumit
                                             Batra and Mr. R.C.S. Bhadoria,
                                             Advocates for the respondent
                                             Nos. 3 & 4.


CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE SIDDHARTH MRIDUL

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.      (ORAL)

1. The present writ petition is filed by the Ranbaxy Laboratories

Limited by way of an appeal against the order dated 30.07.2009 of

the Ld. Jt. Secretary, Ministry of Finance, Gov. of India disallowing

thereby the claim of the petitioner regarding interest on delayed

payment of rebate claims in terms of Section 11BB of Central Excise

Act, 1944.

2. The factual matrix of this case leading to the present appeal started

when the Ld. Jt. Secretary, Ministry of Finance, Gov. of India

disallowed the appeal of the respondents therein and upholding

thereby the order of the Ld. Commissioner (Appeals-II), Central

Excise, Indore in favour of the petitioner herein regarding certain

rebate claims amounting to Rs. 4, 84, 52, 227 /- made by the

petitioner during the period April & May 2003, which, initially, had

been denied by the Assistant Commissioner of Central Excise, Ujjain.

3. Thereafter, its claims having been allowed by the Ld. Jt. Secretary,

the petitioner filed a claim for interest amounting to Rs.43,96,943 /-

on delayed payment of rebate claims on the ground that in terms of

Section 11BB of Central Excise Act, 1944 the petitioner is entitled to

receive interest from the date of filing of rebate claim till the date of

sanctioning & payment of rebate claim. However, the Assistant

Commissioner of Central Excise, Ujjain, vide order dated 10.01.06,

rejected this claim as made by the petitioner on the ground that the

rebate has been sanctioned within three months of the receipt of

order in original dated 30.09.04 and, therefore, by virtue of

application of explanation to section 11BB, petitioner is not entitled

for interest as claimed for.

4. Feeling aggrieved, the petitioner went in appeal before the Ld.

Commissioner (Appeals-I), Central Excise and Customs, Indore, who

allowed the appeal vide order dated 16.03.06 and consequently

directed the respondent therein to compute and pay interest to the

petitioner.

5. Now it was the turn of the Department to feel aggrieved and

consequently an appeal was preferred by the Revenue against the

aforesaid order before the Customs, Excise & Service Tax Appellate

Tribunal, New Delhi. The Tribunal dismissed the appeal on the

ground of lack of jurisdiction. The Revenue decided to keep pursuing

the matter before the Ld. Jt. Secretary, Ministry of Finance, Gov. of

India by way of a revision application. Ld. Jt. Secretary vide order

dated 30.07.09 allowed the application of the Department and set

aside the order dated 16.03.06 of Ld. Commissioner (Appeals-I).

6. It is clear from the above that the question is as to whether the

petitioner is entitled to claim interest on delayed payment of rebate

claims. To put differently, under the said provision, for which

period the interest is allowed, whether the period for which the

interest is leviable would be from the date the amount was paid till

its refund or from the date of application for interest on refund is

made.

7. Learned counsel for the petitioner submits that since the interest if

compensatory in nature, it has to be allowed from the date when

the amount was paid by the petitioner to the Government as this

amount was withheld/kept by the Government unauthorizedly

during all this period. He also referred to various judgments of

different High Court in respect of his plea. His further submission

was that even the Board had issued clarification in this behalf on the

same lines. All these arguments would be of no avail to the

petitioner in view of the recent judgment of the Supreme Court in

the case of Union of India & Anr. v. Shreeji Colour Chem Industries,

(2008) 9 SCC 515. The Supreme Court interpreted this very

provision, namely, Section 11BB of the Act, which provision is

worded as under :-

"11BB. Interest on delayed refunds. - If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Central Government, by Notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty :

Provided that where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty.

Explanation. - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal (National Tax Tribunal) or any court against an order of the Assistant Commissioner of Central Excise or Deputy 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, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section."

8. This provision states that interest is to be paid from the date

immediately after the expiry of three months from the date of

receipt of „such application‟ till the date of refund of such duty. The

Supreme Court interpreted that this would mean that interest is

payable only after the expiry of three months from the date on

which application for refund is made and not when the amount is

deposited. The contention of the petitioner that equitable interest

was also payable was rejected by the Court in view of the specific

statutory provision. Relevant portion of the judgment of the

Supreme Court reads as under :-

"8. A three-Judge Bench of this Court in Modi Industries Ltd, Modinagar and Ors. v. Commissioner of Income Tax, Delhi and Ors. : [1995]216ITR759(SC) dealt with the position relating to grant of statutory interest. In paras 58 & 59 it was inter alia observed as follows:

"58. The argument, which was upheld in some of the cases now under appeal, is that it will be inequitable if the assessee does not get interest on the amount of advance tax paid, when the amount paid in advance is refunded pursuant to an appellate order. This is not a question of equity. There is no right to get interest on refund except as provided by the statute. The interest on excess amount of advance tax under Section 214 is not paid from the date of payment of the tax. Nor is it paid till the date of refund. It is paid only up to the date of the regular assessment. No interest is at all paid on excess amount of tax collected by deduction at source. Before introduction of Section 244(1-A) the assessee was not entitled to get any interest from the date of payment of tax up to the date of the order as a result of which excess realisation of tax became refundable. Interest under Section 243 or Section 244 was payable only when the refund was not made within the stipulated period up to the date of refund. But, if the assessment order was reduced in appeal, no interest was payable from the date of payment of tax pursuant to the assessment order to the date of the appellate order.

59. Therefore, interpretation of Section 214 or any other section of the Act should not be made on the assumption that interest has to be paid whenever an amount which has been retained by the tax authority in exercise of statutory power becomes refundable as a result of any subsequent proceeding."

9. In Clariant International Ltd. v. Securities and Exchange Board of India : AIR 2004 SC 4236 it was observed as follows:

"30. Interest can be awarded in terms of an agreement or statutory provisions. It can also be awarded by reason of usage or trade having the force of law or on equitable considerations. Interest cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds there for, for which a written demand is mandatory.

31. In absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate. Such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction. See Municipal Corporation of Delhi v. Sushila Devi : [1999] 2 SCR 1198."

As was observed in para 30 referred to above, if the claim of interest is on equitable ground, a written demand therefor is imperative.

10. In the instant case admittedly no such written demand has been made. In terms of Section 11BB(1), the respondent- assessee is entitled to interest from 12th April, 2004 to 26th August, 2004. The quantum shall be worked out and the amount shall be paid within a period of four weeks. The order of the High Court is accordingly modified and the appeal is allowed to the aforesaid extend. No costs."

9. Bound by the aforesaid judgment, as we are, we find no merit in the

present writ petition which is dismissed.

No costs.

(A.K. SIKRI) JUDGE

(SIDDHARTH MRIDUL) JUDGE December 18, 2009 nsk