2010 (5) TMI 429 - AT - Customs

Interest on delayed refund Amount claimed as refund deposited during investigation - matter was sub-judice before the Court - appellant is not entitled for refund claim is not acceptable in terms of the Board Circular dated 8-12-2004 - Revenue has to refund the amount deposited by the appellant during the course of investigation - which the department has failed to do - appellant is entitled for interest after three till the date of its realization - appeal is disposed of

Summary

Issues Involved:
1. Entitlement to interest on refund claim filed by the appellant.
2. Validity of the Deputy Commissioner's action in returning the refund claim.
3. Calculation of interest on the refund amount.

Issue-Wise Detailed Analysis:

1. Entitlement to Interest on Refund Claim:
The appellant contended that they deposited the amount under protest on 6-1-1999 and filed a refund claim on 7-7-1999. The Deputy Commissioner returned the refund claim on 19-7-1999, stating that the matter was sub-judice. The appellant argued that the Deputy Commissioner should have either sanctioned or rejected the claim per the Customs Refund Application (Form) Regulations, 1995. The Tribunal noted that the refund claim was returned due to the pending adjudication and not due to any deficiency in the application. Therefore, the appellant was not entitled to interest from 7-7-1999.

2. Validity of the Deputy Commissioner's Action:
The Deputy Commissioner returned the refund claim on the grounds that the show-cause notice was pending adjudication. The Tribunal found this action valid, as the claim was sub-judice. Regulation 2 of the Customs Refund Application (Form) Regulations, 1995, allows the proper officer to return an incomplete application within ten working days, pointing out deficiencies. In this case, the Deputy Commissioner acted within his authority by returning the claim due to the pending adjudication.

3. Calculation of Interest on the Refund Amount:
The appellant alternatively claimed interest from the date of the Tribunal's order on 4-7-2002, which held the demand unsustainable. The Tribunal agreed, citing the CBEC Circular No. 802/35/04-CX dated 8-12-2004, which mandates the refund of pre-deposit amounts within three months of the Tribunal's order unless stayed by a higher court. The Tribunal noted that no stay was granted by the Apex Court. Therefore, the appellant was entitled to interest from three months after 4-7-2002 until the date of realization.

Conclusion:
The Tribunal concluded that the appellant was not entitled to interest from 7-7-1999 due to the valid return of the refund claim by the Deputy Commissioner. However, the appellant was entitled to interest from three months after 4-7-2002, the date of the Tribunal's final order, until the date of realization, as the department failed to refund the amount within the stipulated period. The appeal was disposed of with these directions.