2018 (10) TMI 1806 - AT - Customs

Refund of pre-deposit - double payment towards pre-deposit for filing of appeal - Section 27(1B)(a) and (b) of the Customs Act, 1962 - HELD THAT - The appellant had all along claimed that it had remitted the above pre-deposit amount in the name of the importer by mistake and after realizing the same, they made another remittance of the same amount in their name as pre-deposit which was also accepted and thereafter, they claimed refund of the first pre-deposit and these facts remain undisputed. The Commissioner (Appeals) in his order while rejecting, has maintained that the first pre-deposit was made in the name of M/s. Sree Sai Inc. and it is not the case of the Revenue that the above pre-deposit was made by M/s. Sree Sai Inc. The Commissioner (Appeals) has entertained assumptions in denying the benefit by observing that pre-deposit amount paid by one cannot be reversed by somebody else which is without any documentary evidence and it is not even the case of the Commissioner (Appeals) that the first pre-deposit was made by M/s. Sree Sai Inc. against which a refund is claimed by the appellant herein. The Revenue has nowhere denied the fact that both pre-deposits were made by the appellant alone - also, a perusal of the TR challan for making the first pre-deposit indicates that the amount tendered was certainly not in cash, but by DD/BPO and if the reviewing authority was serious, the same could have been looked into, so as to ascertain who has drawn the DD/BPO, i.e., whether appellant or the importer. The denial of refund is unjust and unsustainable - appeal allowed - decided in favor of appellant.

Issues: Denial of refund of pre-deposit of ?22,500.

Analysis:
1. The appeal challenges the denial of refund of a pre-deposit amount of ?22,500.
2. The adjudicating authority initially sanctioned the refund as it found a double payment towards pre-deposit, which was required to be refunded under Section 27(1B)(a) and (b) of the Customs Act, 1962. However, the Commissioner of Customs (Appeals-II) set aside the order and the refund upon appeal by the Revenue.
3. During the hearing, the appellant claimed that the initial pre-deposit was made in the name of the importer by mistake and was later rectified by making a second pre-deposit in their own name. The Commissioner (Appeals) rejected this claim, stating that the first pre-deposit was made in the name of the importer, M/s. Sree Sai Inc.
4. The Commissioner (Appeals) denied the refund based on an assumption that a pre-deposit made by one party cannot be reversed by another, without providing any documentary evidence to support this claim. The Revenue did not contest the fact that both pre-deposits were made by the appellant alone.
5. The importer's No Objection Certificate (NOC) confirmed that the pre-deposit was made only by the appellant in the name of the importer, indicating that the importer did not make the payment. This rules out the possibility of a dual claim for refund on the same pre-deposit.
6. The Tribunal noted that the mode of payment for the initial pre-deposit was through DD/BPO, and if the reviewing authority had investigated further, it could have determined whether the appellant or the importer had drawn the DD/BPO. However, this aspect was not examined.
7. Considering the lack of evidence supporting the denial of refund, the Tribunal concluded that the denial was unjust and unsustainable. The Tribunal set aside the Commissioner (Appeals) order and reinstated the decision of the adjudicating authority to refund the pre-deposit amount.
8. The judgment was pronounced in open court on 29-10-2018 by Shri P. Dinesha, Member (J) of the Appellate Tribunal CESTAT CHENNAI.

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