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TMI Blog2008 (8) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... ional assessment accepting the transaction value adopted by them at the time of filing of bill of entry and sanction the consequential refund immediately. 2. Ld. Advocate on behalf of the appellants submitted a synopsis of dates and events since in this case the appellants had to approach Hon ble Gujarat High Court several times and there was substantial delay in finalization of provisional assessment, in considering the refund claim and also in payment of same and at every stage they had to approach the Hon ble High Court of Gujarat. Even now a writ petition has been filed against the order of the adjustment of the refund amount against a demand confirmed by the Commissioner and is still pending before the Hon ble High Court of Gujarat. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had rejected the appeal on the ground that the appellants had not lost because of non-adjustment since the money which was confirmed as demand was lying with them. The Commissioner (Appeals) has dismissed the appeal on the ground that the Order-in-Original adjusting the refund was not challenged by the appellants and therefore has attained finality. The ld. SDR on behalf of the Revenue points out that by not challenging the order of adjustment, that order has attained finality and therefore Commissioner (Appeals) has rightly dismissed the appeal. He also pointed out that adjustment of refund against the demand was correct in view of the decision of the Tribunal in CCE, Indore v. Gahoi Foods Pvt. Ltd. [2005 (180) E.L.T. 186 (Tri. Del.)]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms to comply with the order of the Appellate Commissioner if there was no stay by the proper forum, within two weeks. 6. 20-12-2000 Though no stay was granted by the Appellate Tribunal in the appeal of the Revenue, the above order of the Hon ble High Court was not complied with and hence, a Misc. Civil Application No. 2270/2000 was filed by the appellant wherein the Hon ble High Court directed Customs to do what was required to be done within a period of one week. 7. 22-12-2000 The Deputy Commissioner issued a communication informing the appellant that a refund of Rs. 58,90,594/- was sanctioned but the same was adjusted against demand confirmed under another OIO No. KDL/Commr/76/2000 (this OIO was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant submitted a brief note referring to the factual background of the case and also various orders in support of claim for interesl from 1-10-2000 to 30-7-2002. 15. 28-3-2003 As no decision was taken by the Deputy Commissioner on the claim for interest despite several reminders, the appellant filed SCA No. 11768 of 2002 before the Hon ble Gujarat High Court wherein the Hon ble Court directed the Assistant Commissioner to lake decision within 15 days. 16. 1-5-2003 Despite the direction to take a decision within 15 days, the Assistant Commissioner passed an adjudication order rejecting the claim for interest on the ground that adjustment of refund was ordered on 20-10-2000 which was in lieu of recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellants a week thereafter but whereas the adjustment was made on 21-12-2000. It is also seen that no principles of natural justice were followed while passing the refund order adjusting the amount. I find considerable force arguments advanced by the Revenue that by not challenging this order, the adjustment becomes valid and attains finality. However, the question is not whether that order is final or not since refund has been paid subsequently, but the question is whether from what date interest has to be paid in cases like this. There is no dispute that the claim was filed consequent to finalization of provisional assessment on the basis of order of the Commissioner (Appeals) which directed the lower authority to accept the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at such rate (not below five per cent), and not exceeding thirty per cent per annum as is for the time being fixed (by the Central Government, by notification on the Official Gazette), on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. From the above it may be seen that the date of filing of the refund claim is not really relevant but what is relevant is provisions of Section 27(2) of Customs Act, 1962. Accordingly to Section 27A, an order passed by the Commissioner (Appeals) has to be treated as an order under Section 27(2). In view of the above legal provisions under Section 27A and Section 27(2) of Customs Act, 1962 interest becom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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