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2021 (4) TMI 1204 - HC - CustomsRefund of deposit - the deposit was paid under protest - refund of Additional Duty - HELD THAT - There is nothing, which may prevent the respondent Department from granting the refund of ₹ 71,64,592/- (rounded off to ₹ 71.65 Lacs) made by the petitioner as Pre-deposit. The said amount was claimed by way of Pre-deposit during the investigation and was deposited by the petitioner under protest . It is his further say that the additional amount of Duty of ₹ 77,54,237.40 (rounded off to ₹ 77.54 Lacs) was deposited by the petitioner under protest for the purpose of getting the goods cleared under the various Bills of Payment. Thus, the total amount which needs to be refunded to the petitioner is ₹ 1.49 Crores (rounded off) - there being no objection on the part of the respondents in granting the refund of the amount of Pre-deposit of ₹ 71.65 Lacs (rounded off), we direct the respondents to refund the said amount of Pre- deposit within a period of Two Weeks from Today. The said amount shall be deposited in the Bank Account of the petitioner, details of which shall be furnished by the petitioner to the Department, on its Official Email ID. Refund of amount of additional Duty collected by the respondent - HELD THAT - The respondent Department cannot be a Judge in its own cause, more particularly, when no stay was sought for by the Department against the operation of the order passed by the Tribunal. Thus, subject to the petitioner, through its Managing Director Shri Gyanchand Fulchand Jain, filing an Undertaking before this Court within a week that it would abide by the decision of the Apex Court eventually, the said amount of additional Duty of ₹ 77.54 Lacs (rounded off) shall be refunded to the petitioner within a period of Four Weeks from Today. In absence of clarity in the affidavit in reply and for want of necessary instructions at the ends of learned Standing Counsel Mr. Priyank Lodha as to why Provisional Assessment of the goods is still being made under the CTH 8528 and not under the CTH 8517 when the Tribunal has held in favour of the petitioner, let specific instructions be obtained by the learned Standing Counsel Mr. Lodha before the next date of hearing in that regard. List on 22.03.2021.
Issues:
1. Classification of imported goods under Customs Tariff Heading (CTH) 8517 or 8528. 2. Challenge to Order-in-Original dated 25.04.2018 by both petitioner and respondent Department. 3. Tribunal's decision in Appeal Petition No. C/11809/2018 setting aside the Order-in-Original. 4. Petitioner's request for refund of Pre-deposit and Additional Duty. 5. Respondent Department's continued Provisional Assessment at a higher rate despite Tribunal's direction. 6. Pending appeal before the Apex Court affecting finalization of Provisional Assessment and refund. Issue 1: Classification of Imported Goods The petitioner, a manufacturer of networking and broadcasting equipment, imported goods classified under CTH 8517 but faced show-cause notices seeking differential duties, claiming the goods should be under CTH 8528. The respondent Department upheld this classification, leading to a legal dispute. Issue 2: Challenge to Order-in-Original Both petitioner and respondent Department challenged the Order-in-Original dated 25.04.2018. The Tribunal, in Appeal Petition No. C/11809/2018, set aside this order, ruling that the goods should be classified under CTH 8517 due to their data transmission function. Issue 3: Tribunal's Decision The Tribunal's decision favored the petitioner, leading to the respondent Department appealing to the Apex Court. The Tribunal set aside the demand for Customs Duty based on classification, and the Department's appeal focused on the issue of time limitation. Issue 4: Refund Request The petitioner sought a refund of Pre-deposit and Additional Duty, totaling around ?1.49 crores. The petitioner approached the Court for a writ of Mandamus to finalize Provisional Assessment and refund the excess amount collected. Issue 5: Continued Provisional Assessment Despite the Tribunal's direction to classify goods under CTH 8517, the respondent Department continued Provisional Assessment at a higher rate. The petitioner raised concerns about the ongoing collection of duties under CTH 8528. Issue 6: Pending Appeal Before Apex Court The respondent Department cited a pending appeal before the Apex Court as the reason for not finalizing the Provisional Assessment or granting the refund. The Department argued that the matter being sub judice prevented them from taking action. The Honorable Court, after hearing both parties, directed the respondent Department to refund the Pre-deposit amount within two weeks. For the Additional Duty amount, subject to the petitioner's Undertaking to abide by the Apex Court's decision, a refund was ordered within four weeks. The Court highlighted the Department's lack of clarity on why Provisional Assessment continued under CTH 8528 and instructed the Standing Counsel to provide necessary instructions before the next hearing on 22.03.2021.
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