SCA/4005/2007 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4005 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= BILLION FLEX INDIA PVT.LTD. THR' ITS AUTHRIZED SIGNATORY - Petitioner(s) Versus UNION OF INDIA THR' MINISTRY OF FINANCE & 3 - Respondent(s) ================================================= ======== Appearance : Mr.HASIT DILIP DAVE for the Petitioner. Mr.AJ DESAI, Central Govt Standing Counsel for Respondents 1 to 3. MR NAGESH C SOOD for Respondent(s) : 4. ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 28/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) Rule. Mr.A.J. Desai, learned Standing Counsel waives service SCA/4005/2007 2/3 JUDGMENT of rule on behalf of respondents no.1 to 3 and Mr.Nagesh C. Sood, learned advocate waives for respondent no.4. 2. The grievance voiced in this petition under Article 226 of the Constitution is against the encashment of the Bank Guarantee by the respondent authorities during the pendency of the petitioner's application for stay before the Commissioner (Appeals). In the reply affidavit filed by the Assistant Commissioner of Central Excise & Customs, Waghodia Division, Vadodara-II, it is pointed out that the order in original was received by the petitioner on 13th November 2006, therefore, the statutory period of 60 days for filing the appeal expired on 13th January 2007. The Assistant Commissioner was not informed by the petitioner about the lodging of the appeal and the validity period of the Bank Guarantee given by the petitioners was to expire on 26th January 2007. Hence the Assistant Commissioner invoked the Bank Guarantee on 16th January 2007, after the statutory period of filing of appeal was over. 3. Though Mr.Hasit Dave for the petitioner seeks to controvert the statement that the Assistant Commissioner was not informed about the lodging of the appeal, in absence of any rejoinder affidavit, we are not in a position to find fault with the action of the Assistant Commissioner in invoking the Bank Guarantee because the Assistant Commissioner was not informed about the lodging of the appeal before invocation of the Bank Guarantee. SCA/4005/2007 3/3 JUDGMENT 4. In any view of the matter, the controversy now appears to have become academic. Ultimately the appeal has partly been allowed by the Commissioner (Appeals) by order dated 30th August 2007 and the appellate order has already been implemented by now. The amount recovered by the Assistant Commissioner has been refunded to the petitioners after deducting penalty amounts of Rs.15,000/- + Rs.10,000/- = Rs.25,000/-, in the aggregate. 5. At this stage, Mr.Dave, learned advocate for the petitioners makes a grievance that the amount of Rs.85,000/- is refunded without any interest. Since the appellate authority has not passed any specific order for payment of interest, we permit the petitioner to make an application to the authority for paying interest on the amount refunded in accordance with law. As and when such an application is made, the authority shall consider the same within one month from the date of receipt of the application. 6. Rule is made absolute to the aforesaid extent with no order as to costs. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) karim