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TMI Blog2010 (5) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms duty to the tune of Rs. 82,83,108/- along with interest and imposing penalty. 2.2Pending adjudication on 7-7-1999, the appellant filed refund claim of the amount deposited by them on 6-1-1999 on the premise that the said amount had been recovered under duress. 2.3The Deputy Commissioner of Customs (Prev.) returned the refund claim filed by the appellant on 19-7-1999 with direction to file the claim at an appropriate time as the show-cause notice has been issued to the appellants and the same was sub-judice. 2.4 The matter was adjudicated and the demands of differential duty of Rs. 82,83,108/- was confirmed. The said order was challenged before this Tribunal and this Tribunal vide its order in Stay Application No. C/S/2061 to 2063 & 2119/01-Mum. dispensed with the condition of pre -deposit and stayed recovery thereof after noting that besides duty of Rs. 82.83 lakhs, nearly Rs. 9.27 lakhs had been paid as pre-deposit. The appeal was allowed by this Tribunal on 4-7-2002. 2.5 The Revenue filed an appeal against the order of this Tribunal before the Hon'ble Apex Court, although the appeal filed by the Revenue was admitted but no stay was granted and finally the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Application (Form) Regulations 1995, Regulation 2 deals with the form and manner of the filing of application form, which is reproduced as under : - "2. Form and manner of filing application for refund. - (1) An application for refund shall be made in the prescribed Form appended to these regulations in duplicate to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, having jurisdiction over the Customs port, Customs airport, land customs station or the warehouse; where the duty of customs was paid. (2) The application shall be scrutinised for its completeness by the Proper Officer and if the application is found to be complete in all respects, the applicant shall be issued an acknowledgement by the Proper Officer in the prescribed Form appended to these regulations within ten working days of the receipt of the application. (3) Where on scrutiny, however, the application is found to be incomplete, the Proper Officer shall, within ten working days of its receipt, return the application to the applicant, pointing out the deficiencies. The applicant may resubmit the application after making good the deficiencies, for scrutiny. Explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was laid down that pre-deposit ought to have been refunded within three months of the passing of the order of the Tribunal/higher authority and for delay beyond three months, from the date of the said order, the assessee was eligible to interest. The CBEC in the above said Circular has categorically clarified that 'as long as the order of the Tribunal has not been stayed, the amount of pre-deposit has to be refunded within the period of three months, failing which interest has to be paid'. 3.4 He further submitted that Commissioner (Appeals) has erred in relying the Apex Court's decision in the case of UOI v. West Coast Paper Mills - 2004 (164) E.L.T. 375 (S.C.) that once Special Leave is granted and appeal is admitted, correctness otherwise of the judgment of Tribunal becomes wide open and that an appeal is a continuation of a suit and that a decree becomes executable only when the same is disposed off by a court of appeal. 3.5In sum and substance he prayed that if the Tribunal is of the view that the application dated 7-7-1999 cannot be considered for refund claim, then in view of the Board Circular No. 802/35/04-CX dated 8-12-2004, the appellant is entitled for intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by the Proper Officer in the prescribed Form appended to these regulations within ten working days of the receipt of the application. (3) Where on scrutiny, however, the application is found to be incomplete, the Proper Officer shall, within ten working days of its receipt, return the application to the applicant, pointing out the deficiencies. The applicant may resubmit the application after making good the deficiencies, for scrutiny. Explanation. - For the purposes of payment of interest under section 27A of the Act, the application shall be deemed to have been received on the date on which a complete application, as acknowledged by the Proper Officer, has been made." From the reading of the said regulation, I find that if the officers found that the application in incomplete, within 10 working days of its receipt is to be returned pointing out the deficiencies and applicant may resubmit the application after making good the deficiencies. 8.In this case, the appellant filed refund claim, but it was found that the amount which is claimed as refund is sub-judice before the adjudicating authority. This deficiency was found in the refund claim. In these circumstances, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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