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TMI Blog2012 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... encased by the appellant by avoiding statutory interest which is mandatory and payable at the prescribed rate for delay in payment of customs duty – against assessee. - Cus.Appeal.No. 1 of 2011 - - - Dated:- 10-4-2012 - MR.JUSTICE C.N.RAMACHANDRAN NAIR, MR. JUSTICE BABU MATHEW P.JOSEPH, JJ. For Appellant: SRI.G.L.RAWAL (SR.), SRI.GEORGE POONTHOTTAM, SRI.SUJITH MATHEW JOSE, SRI.M.PRAVEESH, SRI.N.ANAND For Respondent: SRI.SAIBY JOSE KIDANGOOR, SC JUDGMENT Ramachandran Nair, J. This is an appeal filed under Section 130 of the Customs Act against the order of the Customs, Excise and Service Tax Appellate Tribunal with a delay of 705 days. The reason for the inordinate delay is the filing of appeal against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, the Cochin Customs set off the customs duty payable on import made by the appellant against duty credit purchased and produced by the appellant. Much after import and release of the goods, the Cochin Customs verified with the Nhava Sheva Custom House at Mumbai about the genuineness of the DEPB credit purchased and produced by the appellant through Telegraphic Release Advice (TRA) purportedly issued by the Nhava Sheva Custom House. It was confirmed that the Telegraphic Release Advice of duty credit under DEPB scheme produced by the appellant was forged and bogus leading to customs duty evasion. Consequent upon this fraud, the Commissioner demanded the duty evaded by the appellant together with interest and also levied penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant relied on decision of the Supreme Court in STAR INDIA (P) LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, MUMBAI GOA reported in (2005) 7 SCC 203, decision of the Bombay High Court in UNION OF INDIA Vs. VALECHA ENGINEERING LIMITED reported in 2010 (249) E.L.T. 167 (Bom.) and also decision of the Gujarat High Court in COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, DAMAN Vs. NIRMALA DYECHEM (Tax Appeal No.1341 of 2011). 4. Standing Counsel appearing for the respondents on the other hand relied on decision of the Calcutta High Court in ICI INDIA LIMITED Vs. COMMISSIONER OF CUSTOMS (PORT), CALCUTTA reported in 2005(184) E.L.T. 339 (Cal.). After considering the above decisions what we notice is that the decision rendered by the Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheva Custom House at Mumbai, the Customs allowed adjustment of duty credit against duty payable by the appellant for the imported goods released to him. We do not think the mistake committed by the Customs can be encashed by the appellant by avoiding statutory interest which is mandatory and payable at the prescribed rate for delay in payment of customs duty. When liability for payment of customs duty is admitted, interest for delay in payment which is statutory is automatic and we do not think the appellant can raise even a contest against levy and demand of interest for the belated payment, when the delay is attributable only for the fraud played on the department, whether it be with the complicity of the appellant or not. In our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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