9911796707
TMI Blog2000 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... par Limited. At the time of import an excess duty of Rs. 63,40,757/- was paid by the appellant which was actually not chargeable under notification of 64/94-Cus. dated 1-3-1994. Accordingly the Commissioner (Appeals) vide Order-in-Appeal No. 486/97 MCH dated 17-6-1997 ordered consequential relief to the appellant. It is observed that the appellant has filed a suit against the M/s. Apar Limited. I also find that there are series of litigations between the appellant and M/s. Apar Limited for recovery of Custom duty paid by the appellant and that finally the matter is pending before Hon ble High Court, Mumbai. The appellant has in above mentioned suit prayed before Hon'ble High Court that the defendant be ordered to pay the sum of Rs. 63,40,75 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, 8 were covered by the Exemption notification. At the time of import, according to the appellants, due to shortage of time for meeting deadline fixed with M/s. Apar Ltd., they had to clear the imported consignment after discharging 25% ad valorem duty. Appellants thereafter claimed refund by letter dated 6-7-1995 for Rs. 63,40,757/-. They also submitted a certificate from the Chartered Accountant stating that the sale of WOEGs to M/s. Apar Ltd. was on the basis of firm prices and no upward variation was payable as per the terms of the order placed by M/s. Apar Ltd. and that the liability of excess duty paid has not been passed on to M/s. Apar Ltd. The refund claim was however rejected by the Asst. Commissioner by order dated 19-2-1996 hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bombay High Court denied their liability to pay this amount. The Asst. Commissioner by order dated 22-1-1999 rejected the refund claim on the ground that the same was premature as the issue of passing of incidence of extra duty was pending before the High Court. In appeal, the Commissioner (Appeals) rejected appellant's claim for refund on the same ground. 3. Ld. Counsel has argued that the Commissioner (Appeals) had by his order dated 17-6-1997 clearly conceded that the impugned goods are covered by the Exemption Notification No. 64/94. There was therefore no scope for any doubt about the basis of the appellant's refund claim for the said amount. The Asst. Commissioner's order rejecting the grant of amount of refund was made while con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was "exclusive of excise duty, sales tax which are not applicable as on date". The appellants had in their suit claimed disbursement of the amount of customs duty paid by them. The appellants had thereby shown their intention to pass on the duty liability to M/s. Apar Ltd. Since the matter is still pending before the Hon'ble High Court, the authorities below had rightly rejected the refund claim as being premature. Ld. JDR therefore prayed for rejection of the appeal, for being premature. 5. We have considered the submissions of both sides and have perused the record. The question for consideration boils down to whether the appellants should be allowed refund of duty under Section 27(1) of the Customs Act when the question whether the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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