9911796707
TMI Blog2010 (6) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27. Legitimate use of fund denied. Revenue’s conduct cannot be overlooked as purpose of introducing section 27A and issuance of circular would be defeated. - 4618 of 2010 - - - Dated:- 30-6-2010 - V.C. Daga and S.J. Kathawalla, JJ. REPRESENTED BY: Shri Prakash Shah i/by P.D. Legal, for the Petitioner. S/Shri R.V. Desai, Senior. Counsel a/w R.B. Pardeshi, for the Respondent. [Judgment per: S.J. Kathawalla, J.]. - Heard 2. Rule. 3. Mr. R. V. Desai, learned Senior Counsel for the Respondents waives service. 4. By consent of the parties, Rule made returnable forthwith and the Petition is taken up for final hearing. 5. By this Writ Petition, the Petitioner has prayed for a Writ of Certiorari or a writ in the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been awarded to the Joint Venture Company, the import was made by the Petitioner i.e. one of the JV Company and not by the JV Company. 8. The Deputy Commissioner of Customs, by his letter dated 8th March, 2002 finalized the provisional assessment denying the benefit of Notification No. 17/01Cus. dated 1.3.2001. Hence the Petitioner paid Customs Duty of Rs.39,84,195/under protest vide a Demand Draft on 18th March, 2002 and intimated the same to the Department. The Petitioner filed an appeal before the Commissioner of Customs (Appeals), Nhava Sheva against the order of final assessment. By an order dated dated 26.8.2003, passed by the Commissioner of Customs (Appeals), the appeal of the Petitioner was rejected. The Petitioner therefore fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not consider the representation of the Petitioner nor was the interest paid, the Petitioner issued a notice under Section 80 of the CPC to the Respondents through their Advocate requesting for grant of interest under Section 27A of the Customs Act, 1962. The Petitioner therefore filed the present writ petition. Submissions: 9. It is submitted on behalf of the Petitioner that the Petitioner is entitled to receive interest @ 6% per annum on the amount of Rs. 39,84,195/ from 11th December, 2004 i.e. after three months from the date of receipt of the application seeking refund filed by the Petitioner with the respondents. The actual disimbursement by way of issuance of cheque for Rs.39,84,195/ to the Petitioner was made on 12.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, from the Respondents, on the amount of s.39,84,195/from 11th October, 2004 to 11th November, 2008. Per Contra: 10. The learned Senior Counsel Mr. Desai, appearing for the Respondents has submitted that though it is true that the Petitioner applied for refund under Section 27 of the Customs Act, 1962 vide application dated 11th September, 2004, the Petitioner has submitted a Certificate from a Chartered Accountant confirming that an amount of Rs. 39,84,195/ is shown as receivable from the Customs Department in the books of accounts only on 10th October, 2006. Mr. Desai was reminded by this Court that by a Department Circular MF(D.R.) F.No. 275/37/2K-CX, 8A dated 2.1.2002, it is clarified that refund Applications under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vember, 2004 seeking refund, within three months from the date of receipt of the the said application. 12. Sections 27 and 27A of the Customs Act, 1962 and Sections 11B and 11 BB of the Central Excise Act, 1944 are identical in all respects. In the decision of the Division bench of this Court in Swaraj Mazda Limited (supra) to which one of us (V.C. Daga, J) is party, this Court, has set aside the finding of the Revisional Authority that the applications submitted by the Petitioner for refund were not completed and were completed only on production of Certificate pursuant to the Appeal order, and has held that unless a finding is recorded that an application that was filed by the Petitioner under Section 11B of the Central Excise Act 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 39,84,195/ on or before 11th December, 2004 on one pretext or the other and deprived the Petitioner the legitimate use of its funds till 11th November, 2008. The aforestated conduct of the Respondents cannot be overlooked since by doing so the purpose of introducing Section 27A to the Customs Act, 1962 and issuance of circulars from time to time would be defeated. These measures are taken to enable assessees to get their refunds on time and thereby discourage the Respondents from delaying grant of refunds. Under these circumstances, we pass the following order: ORDER 1. The Respondents shall pay the Petitioner interest @ 6 % p.a. on the sum of Rs.39,84,195/ from 11th December, 2004 to 11th November, 2008 on or before 15th August, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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