9911796707
TMI Blog2010 (9) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... . Murthy, JJ. REPRESENTED BY : Shri A.D. Maru, Advocate, for the Appellant. Shri R.S. Srova, JDR, for the Respondent. [Order]. The facts giving raise to this appeal are as follows : The appellant imported a ship for dismantling through canalyzing agency M/s. MSTC Ltd. in March 1987. As per a MOA dated 17-1-87 between the seller and M/s. MSTC, the LDT of the vessel was 5679.58. However the appellant had shown 5179.88 as LDT in the bill of entry. The bill of entry was initially assessed provisionally subject to resolving the dispute over LDT subject to production of MOA between the seller and MSTC. The provisional assessment was later finalized on 4-5-88 by taking 5679.58 as LDT resulting in differential duty demand of Rs. 7,11,237.80 against the appellant. Out of this amount an amount of Rs. 4,71,446/- was adjusted out of refunds eligible to the appellants in some other case on 21-2-89. The matter relating to the assessment of the ship reached the Tribunal and the New Delhi Bench of the Tribunal vide stay order dated 13-3-89 ordered that the appellant should pay the balance amount of duty also as a condition of hearing the appeal. This was challenged by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 7-12-04 and release of bank guarantee which was again rejected by the original adjudicating authority on 26-6-06. This matter also reached the Tribunal and this Tribunal vide Oder No. A/271/WZB/AHD/08 dated 20-2-08 remanded the issue of refund claim also to the original adjudicating authority with a direction to decide both the issues namely issue of assessment of the ship as well as the refund of the amount deposited by the appellants. Later the Hon ble High Court of Gujarat vide order No. 25-11-08 decided the writ petition and directed MSTC to give its conclusion within four months. Accordingly MSTC Mumbai vide letter dated 16-4-09 intimated that LDT of the vessel was 5179 LDT only. On the basis of this letter and after considering the bill of entry, the original adjudicating authority vide his order dated 30-6-09 dropped the demand for differential duty of Rs. 7,11,237/-. In the same order he also directed the release of the bank guarantee and ordered the appellant to file a refund claim under Section 27 of the Customs Act, 1962 ( the Act for short) for the excess amount of duty of Rs. 4,71,447/- recovered earlier. On an appeal filed by the appellant, the appeal was rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Chemicals cannot be applied to this case. There an entirely different issue had come up. The Tribunal had identified the issue in paragraph 1 of the order as reproduced below : The issue involved in this Appeal filed by M/s. Mardia Chemicals Ltd. is whether the Revenue can adjust the duty amount due from the Appellants out of the amount of refund sanctioned to them. Shri R.S. Dinkar, learned Advocate submitted that demand of Rs. 35,05,293/- was confirmed against them under Order-in-Original No. 408/Demand/97, dated 21-11-97; that the appellants had paid the said amount of demand by debiting through their RG 23A Part II on 23-3-98; that on Appeal the Commissioner (Appeals) allowed their Appeal vide Order-in-Appeal No. 1160/2001, dated 4-1-2002; that thereafter they filed the refund claim with the Department; that the Assistant Commissioner has sanctioned the refund claim vide Order dated 13-11-2002; that he has however, adjusted the amount of Rs. 23,89,022/- out of refund sanctioned to them against the demands confirmed by him under some other orders; that the Commissioner (Appeals) also under the impugned order has rejected their Appeal holding that in the light of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required since refund was already sanctioned but adjusted, it has to be paid suo motu. In this case the issue is different. In this case part of the amount due was recovered by adjustment against refund due when appeal was pending and the question is whether appellant were eligible for refund of amount recovered when the order confirming demand was set aside and matter was remanded. In this case, the issue is whether the amount is to be treated as duty paid or a pre-deposit and not whether refund sanctioned and adjusted against a demand has to be paid suo motu when the demand is set aside. Therefore the decision in Navdeep Packaging Industries also would not apply since facts and issue are different. 8. The next question that has to be decided is whether the amount of Rs. 4,71,447/- can be treated as pre-deposit or not. The learned Commissioner (Appeals) has considered this to be recovery by the proper officer in terms of the provisions of the Act towards differential duty and was not a pre-deposit made as a pre-condition for hearing of the appeal under the Customs Act. He has also observed that the Board s Crculars dated 2-1-02 and 8-12-04 relied upon by the appellants befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to returning pre-deposits made as per directions of CESTAT or any other final authority in terms of Section 129E of the Act. In para 4 of the Circular, it has been stated that the contents of the Circular dated 2-1-02 as to the modalities of return of the pre-deposits are reiterated. It was also stated that in terms of Hon ble Supreme Court s order such pre-deposit must be returned within three months from the date of the order passed by the appellate tribunal/court or other final authority/CESTAT/court, by a superior court. 10. When we consider the provisions of Section 129E of the Act it becomes clear that when an appeal is filed against a decision or an order, the person who is filing the appeal shall deposit the duty and interest and the penalty levied pending appeal. Depositing the duty, interest and a penalty is a statutory obligation. Therefore the question of Commissioner (Appeals) or the Tribunal directing a person to make a pre-deposit pending appeal does not arise. What the appellate authority does is to examine whether the appellant is required to deposit full amount of duty, interest and penalty or not and in case of undue hardship, waive the requirement of such pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed by way of remand as per initial order dated 3-10-97. The refund claim filed by the appellant consequent to this final order was rejected. On an appeal filed, the Tribunal directed the Assistant Commissioner to refund the amount and also passed strictures for non implementation later. 13. In the case of Max India Ltd. v. CC, New Delhi reported in 2001 (129) E.L.T. 233 (Tri. - Del.) also when the matter was remanded for de novo adjudication, it was held that interest at the rate of 12% from expiry of three months from the date of remand order till the date of payment was payable. 14. In the case of Jindal Electric Machinery Corpn. v. CCE, Ludhiana reported in 2004 (166) E.L.T. 276 (Tri. - Del.), it was held that Section 11BB of Central Excise Act, 1944 is not applicable to any claim for refund of amount pre-deposit under Section 35F and interest at 12% was liable to be paid to the appellant from the date on which appeal is allowed by the Tribunal. 15. In the case of L T Ltd. v. CC, Ahmedabad reported in 2005 (189) E.L.T. 179 (Tri. - Del.) also the same view was taken and it was held that appellants are entitled to interest on the amount of pre-deposit for a period b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is decided in their favour. Further it is also clear from the precedent decisions that even when a case is remanded to the original adjudicating authority, the amount deposited is required to be refunded. 22. Applying the precedent decisions and the circulars issued by the Board to the facts of this case, it becomes quite clear that as contended by the learned advocate for the appellant, they became eligible for refund of Rs. 4,71,447/- on 20-8-96 and this amount was to be refunded suo-motu or on a letter filed by the appellant. In this case also appellants have submitted that they have submitted a letter to the Assistant Commissioner to make payment on 9-7-96. Therefore the decision of the lower authorities that appellant is not eligible for refund till the issue was finally decided by the Assistant Commissioner by his order dated 30-6-09 is unsustainable. 23. In view of the discussions above and on the basis of the circulars issued by the Board and the precedent decisions, it is quite clear that the question of filing a refund claim under Section 27 of the Act does not arise and the appellant in this case have already fulfilled their obligation by submitting a letter on 9-7- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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