2020 (2) TMI 357 - AT - Customs

Refund of amount deposited with Customs - amount has been paid by appellant on their own account - Advance license scheme - violation of actual user condition, the condition on which license was granted - HELD THAT - Although it is the case of the Appellants that the said amount has been paid by them under duress but it has nowhere mentioned in the letter dated 8.10.2007 or in any other communication by the Appellant to the Department nor any other communication which substantiate the argument of duress has been brought on record. It has been vehemently argued on behalf of the Appellant that the aforesaid amount has been paid by the Appellant from their own account, but the wordings of the order dated 18.4.2001 are on their own account. There is a big difference between the meaning of the words from their own account and on their own account. The Appellant has to establish that the amount has been paid by them on their own account which they failed to establish through any of the documentary evidence produced by them. It is true that the revenue, in the Appeal filed by M/s. Kunal Overseas Ltd. before this Tribunal against the Order-in-Original dated 18.4.2001 opposed its request to reduce the pre-deposit amount by the amount of ₹ 20 lacs paid by the Appellants herein, but that does not mean that it is the stand of the Revenue or that it has been pleaded by the Revenue that the aforesaid amount of ₹ 20 lacs was paid by the Appellant herein on its own account and not on account of the importer. The Appellant has to stand on its own legs and establish that they have paid the aforesaid amount of ₹ 20 lacs on their own account, which they failed to establish. Appeal dismissed - decided against appellant.

Summary

Issues:
Refund of amount paid during investigation under duress.

Analysis:
The appeal was filed challenging the Commissioner's order rejecting the refund of ?20 lacs paid by the Appellant during the investigation. The case involved M/s. Kunal Overseas Ltd. purchasing plastic moulding powders and clearing them free of customs duty under DEEC Scheme. Investigations revealed unauthorized sales in contravention of the scheme. A show cause notice was issued proposing recovery of duty jointly and severally from the noticees. The Commissioner confirmed the demand but dropped proceedings against co-noticees. Appeals were filed, and the Tribunal upheld the order directing refund of amounts paid on their own account. The High Court also dismissed Revenue's appeals. The Appellant sought a refund of ?20 lacs, but the Adjudicating Authority rejected the claim, citing a letter stating the amount was voluntarily paid towards duties for imports. The Commissioner (Appeals) upheld this decision.

During the hearing, the Appellant argued the amount was paid under duress and should be refunded with interest. They presented account statements showing the amount as receivable from Customs. The Authorised Representative reiterated the findings of the impugned order and referred to previous Tribunal decisions. The letter from A.M. Timbadia indicated the amount was paid for duties related to imports by M/s. Kunal Overseas Ltd. The balance sheet showed the amount as an asset deposited with customs, but it was not proven to be paid on the Appellant's account. The order dated 18.4.2001 specified refunds for amounts paid on their own account. The Appellant failed to establish this through evidence.

The Tribunal found no merit in the appeal, dismissing it. The Appellant could not prove the ?20 lacs were paid on their own account, as required by the Commissioner's order for refunds. The distinction between "from their own account" and "on their own account" was crucial, and the Appellant's arguments of duress were not substantiated. Despite the Appellant's claims, the evidence presented did not support the payment being made on their own account. The Tribunal upheld the previous decisions and dismissed the appeal.

(Order pronounced in the open Court on 06.02.2020)