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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5508            OF 2008 (Arising out of SLP(C) No. 1449 of 2008)

Union of India & Ors. .... Appellants

Versus

Sterlite Industries (India) Ltd. & Anr. .... Respondents

O R D E R

1. Leave granted.

2. M/s.  Sterlite  Industries  (India)  Ltd.  filed  three  refund  claims dated  17th

September,  2001  and 31st  March,  2003  respectively  under Rule  57AC(7)  of  Central

Excise Rules, 1944.

3. In this civil  appeal we are concerned with Assessment Years 2001-02  and

2002-03.   

4.  Suffice  it  to  state  that  the  Respondent  herein  had  filed   Special  Civil

Application No. 12251 of 2005 before the Gujarat High Court seeking refund.  Vide order

dated 12th August, 2005 the High Court directed the Department to refund the amont of

Rs. 44,20,58,831/- with interest, "as may be admissible in law".   

5. Pursuant to the High Court's order the Assistant Commissioner of Central

Excise paid the refund amount by cheque.  However with respect to interest, the question

was examined  and it  was held  that  interest  was not  admissible.   This order was not

challenged by the respondent in appeal but the respondent moved the High Court again

in Special Civil Application No. 18121 of 2006 seeking direction to the Department to pay

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interest.

6. By the impugned judgment  the  High Court has allowed the Special Civil

Application with a direction to the Department to pay interest  on the refund allowed.

Against the said order the Department has come to this Court by this civil appeal.

7. The  above  facts  indicate  that  against  the  order passed  by  the  Assistant

Commissioner  of  Central  Excise  the  respondent-assessee  had  not  filed  the  statutory

appeal against order denying interest but had moved the High Court directly by way of a

writ petition.   

8. This matter  was argued  for some time  before  us.   Learned counsel  Shri

Lakshmi Kumaran, appearing on behalf of the respondents, on instructions, states that

they would withdraw the Special Civil Application No. 18121 of 206 with liberty to file

appeal before the  Commissioner (Appeals)  within a period of  four weeks.  Permission

granted.  Consequently, the impugned judgment and order is set side and the respondent

is given time to file  Statutory Appeal before the  Commissioner (Appeals)  within four

weeks.  It is made clear that both sides would be entitled to take all legal contentions in

this regard before the Appellate Authority.  Learned Solicitor General states that if the

appeal is filed within the stipulated period, the said appeal will be decided on merits and

that the Department will not raise any objection with regard to limitation.  We further

make it  clear that the Appellate Authority will decide the matter uninfluenced by the

observations  contained  in  the  impugned  judgment  of  the  High  Court  as  also  those

contained  in  its  judgment  dated  12th  August,  2005  in  Special  Civil  Application  No.

12251/2005.

Subject to above, C.A. is dismissed as withdrawn.

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...........................J.        (S.H. KAPADIA)

...........................J.        (B. SUDERSHAN REDDY)

New Delhi September 03, 2008