Refund of pre-deposit is entitled to interest from the date of the last order of the CEGAT till realization, at the rate of 18% per annum.

( 1 ) THIS writ petition is related to matter of refund of the sum deposited by the petitioner pursuant to the direction of the authority or Tribunal in connection with a matter of Central Excise. The petitioners' contention is that the refund amount will be a sum of Rs. 10,00,000/- together with compound interest at the rate of 24% p. a. from the date of the deposit.

( 2 ) UNDER normal circumstances it appears to be a matter in connection with the money claim which ought not to be entertained by the writ court but the subject matter herein is unjust enrichment by the governmental authority in withholding such sum. Therefore, I hold that writ court can entertain try and determine the issue hereunder. Moreover, at the interim stage the authority was approached by the petitioners for having refund on the basis of any interlocutory order passed by a bench of this court which was acted upon by them and the refund of the principal sum of Rs. 10,00,000/-was made.

( 3 ) THEREFORE, the main issue in final hearing is whether refund of such sum will be made with interest or without interest. If such sum is directed to be refunded with interest what would be the rate and the cut off date from which it will be paid with consequential reliefs. The petitioner's contention is that the interest will have to be paid from the original date of deposit.

( 4 ) MR. Gopal Chakraborty, learned Senior Counsel with the able assistance of Mr. Biswajit Bhattacharjee, learned counsel appearing with him contended that when the governmental authorities are insisting for pre-deposit or payment of statutory dues, if necessary, along with the interest they are similarly liable for refunding any sum with interest. A Governmental authority cannot make double play. A Governmental authority, cannot be construed as a privileged person. The basic element of unjust enrichment is based on such tests.

( 5 ) MR. Chakraborty has relied upon a judgment reported in 1988 (34) E. L. T. 449 (Bom.) (Kay Foam Limited v. Union of India) whereunder a Division Bench of Bombay High Court held that it is now well settled that the duty recovered without any authority of law cannot be retained by such authority and in such case refund will have to be made with interest. There the rate is fixed at 18% p. a. from the date of payment till the date of refund. He has also relied upon a judgment of Delhi High Court (Elephanta Oil and Vanaspati Industries Ltd. v. Union of India) whereunder the Division Bench held that when there is a cause of unjust enrichment the money has to be refunded by the governmental authority to the person concerned with a interest. There the rate of interest is fixed at 17. 5% per annum. In (Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. State of Bihar) it was held that in case of refund of levy held by any authority will be made with interest and rate of interest was fixed @ 12% p. a. Such payment was directed to be paid along with costs. However it appears to this court that in all the cases writ jurisdiction of the court were invoked for the purpose of redressal of such grievance and the courts uniformly held in favour of refund with interest.

( 6 ) THEN the next question arose what would be the rate of interest? Mr. Chakraborty submitted that the Parliament by way of amendment of Section 80 of the Negotiable Instruments Act provided that calculation of rate of interest will be 18% per annum when the rate is not so fixed. Therefore, at least such rate of interest is to be the appropriate rate for the purpose of the refund.

( 7 ) MR. Kalyan K. Bandopadhyay, learned counsel appearing on behalf of the authority contended that the money which has been claimed by way of refund is the pre-deposit made by the petitioners for hearing appeal. Therefore, such deposit cannot be treated as an illegal recovery of money on account of any statutory claim from the petitioners. Hence if such sum is refunded, cannot be directed to be paid with interest. In f