9911796707
TMI Blog2012 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... etition reads thus: 1. "The review petitioner is the respondent in the writ petition. The writ petition was filed with the prayer to issue a writ of mandamus commanding the respondent to refund due amount of Rs. 6,62,275/- to the petitioner with interest at the rate of 8% from the date of Ext. P 2 order and direct the respondent to recover the interest from the officer who delayed payment of due amount and to take disciplinary action as per the Exhibit P 7 circular. 2. The above writ petition was disposed off by judgment dated 28.3.2012 with a direction to the respondent to refund the excess fine and penalty consequent to the appellate order to the petitioner within 10 days from the date of the judgment. It is also recorded that the standing counsel of Excise and Customs submits that the excess fine and penalty consequent on the appellate order would be refunded to the petitioner within 10 days. 3. It is respectfully submitted that the submission was regarding the refund of the amount on production of original documents such as importers copy of bill of entry and duty paid T R 6 challan which are mandatory documents as per customs regulations. It is also relevant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of original documents such as importers copy of bill of entry and duty paid chalan and if I accept the same, the second is whether production of such documents are mandatory for claiming the refund. 2. As far as the first question is concerned, although the undertaking was not actually qualified by the requirement to produce documents, at the time when the undertaking was made before me, in so far as a responsible standing counsel of a department of the Government of India makes a submission that actually the intention in making the submission was as stated, I am inclined to accept the same on face value, for the purpose of further considering the contention regarding the requirement of documents. Therefore I shall proceed to consider the other question on merits as to the legality of insistence on the production of documents for making the refund. 3. The contention raised by the petitioner in the Review Petition is that in all cases of refund, original documents viz. importers copy of bill of entry and original duty paid TR6 chalan are insisted upon, without which refund cannot be effected. In the course of arguments, the counsel would also argue that an order rejecting the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order-in-original refers to the amount which has been imposed therein. This itself is sufficient for granting relief to the assesse. No further documents are required from the parties to grant refund. The review section can take an indemnity bond to secure the payment." According to them, apart from that even if such a document is necessary and is not produced, the refund has to be made after obtaining an indemnity bond. 5. In his reply affidavit, the petitioner in the review petition reiterates his contentions and takes the stand that Exts. P3 and P7 are applicable to pre-deposit of duty and not to payment of fine and penalty. 6. I have considered the rival contentions in detail. I am of the opinion that the stand of the petitioner in the review petition is totally hyper-technical and unreasonable. When an appellate authority allows an appeal filed against imposition of tax, duty, fine, penalty etc., it is the bounden duty of the assessing authority, as part of a democratic government, to refund the amounts covered by orders of the appellate authority, when appeals are allowed fully or partially. The same shall be refunded even without a formal request for the same. Certainly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of all amounts covered by Section 129E, including pre-deposit of penalty also. That contention adds to the unreasonable stand of the petitioner in the review petition. 8. Apart from the same, as I have already held, it is the cardinal duty of assessing officers to implement appellate orders by refunding amounts already paid in accordance with the adjudication order, even without a request for the same, since the government cannot act like private parties in the matter of payment of money due, when money is due to citizens from the government. It is the duty of all government officers also to see that the image of the government before the citizens is clean and in accordance with basic principles of fair play. Even otherwise, occasionally, in appropriate cases the officers of the government can be magnanimous also to improve the image of the government before the public. 9. The reasons put forward by the petitioner in the review petition justifying the insistence on the production of original documents also does not impress me at all. When an import is assessed to duty and penalty and fine are imposed, necessarily, the assessing authority maintains a file in relation to the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an indemnity bond, which would certainly safeguard the interest of the revenue in the matter against any possible future claim on the basis of the missing document. The petitioner in the review petition must have been aware of that legal position in view of the decision of the Tribunal quoted by the petitioner in the writ petition in his counter affidavit in this review petition, despite which the petitioner in the review petition had the audacity to make such frivolous contentions in this review petition. After acknowledging the liability to refund the amount as per the appellate order, which was also confirmed by this court in Ext. P5 judgment, the counsel during arguments tried to take the stand that since the petitioner in the writ petition had not challenged the order dismissing the refund application, the petitioner in the review petition is not liable to make the refund at all, which contention was not even taken in the review petition in so far as the review petition was confined to the question of necessity to produce documents as condition for making the refund. That adds to the unreasonable stand of the petitioner in the review petition. Since that question does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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