@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe Petitioner establishment is covered by the provisions of the ESI Act right from 1994. By virtue of a Notice u/s 1(3) of the ESI Act, it is made applicable with effect from 12.4.1994. But the Petitioner chose to make the payment towards ESI contribution only after an allotment of the Permanent Code by proceedings dated 5.9.2003. The Petitioner on such payment of the dues also paid interest and damages payable. However, subsequently, the Department raised a fresh demand by impugned communication dated 3.5.2005 claiming interest on the delayed payment and the interest worked out toRs.6,14,474/-. The Annexure to the order gave the due date and the actual payment made and thereafter worked out the interest in terms of Section 39(5) of the ESI Act.
2. Section 39(5) of the ESI Act reads as follows:
(5)(a) If any contribution payable under this Act is not paid by principal employer on the date on which such contribution has become due, shall be liable to pay simple interest at the rate of twelve percent perannum at such higher rate as may be specified in the regulations till the date of the actual payment:
Provided that higher interest specified in the regulations shall not exceed the lending rate of interest charged by any scheduled bank.
b) Any interest recoverable under Clause (a) may be recovered as an arrear of land revenue or u/s 45C to 45I.
3. However, the Petitioner came before this Court challenging the further demand and filed the present Writ Petition, which was admitted on 18.5.2005. Pending further orders, this Court granted interim stay on condition that the Petitioner deposits 50% of the amount. It is now claimed by Mr. R. Sivakumar, learned Counsel for the Petitioner that the said condition has been complied with.
4. The only question that has to be decided is whether the Petitioner is not liable to pay interest before the date on which Permanent Code was assigned to the Petitioner. Mr. R. Sivakumar, learned Counsel for the Petitioner contended that only after the Code was assigned to the Petitioner, they paid the entire payment together with interest and therefore they should not seek for any fresh demand for interest. The question raised herein is no longer resintegra.
5. The Supreme Court vide its judgment in
9. As there was delay in making the payment of the contribution the Corporation had issued notice on 29.6.1990 at the first instance and thereafter the order was passed u/s 45A of the Act on 23.7.1992. The same was challenged before the ESI Court in which an interim stay was granted on 9.10.1992. During the pendency of the matter there was reverification and the quantum payable by the Appellant was worked out. The liability to pay interest is statutory. There is no power of waiver. The question of any compromise or settlement does not really arise. Even otherwise the order of the ESI Court referred to and relied upon by the Appellant is of no assistance to the Appellant. It only noted statement of the Appellant that he had deposited the contribution payable. The reference to "no further dues" is obviously relatable to the contribution payable and nothing beyond that.
6. In the light of the above, there is no case made out. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition stands closed.
