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TMI Blog2012 (11) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... e with intention to evade customs duty, goods were seized and provisionally released on payment of security deposit of Rs. 5 lakhs paid on 28-4-1999. The goods were confiscated by the adjudicating authority on 13-11-2000 and were allowed to be redeemed on payment of a fine of Rs. 6 lakhs. The importer appealed before the Tribunal and Tribunal vide Order dated 20-3-2006 allowed the appeal with consequential relief. 2. Thereafter, the importer filed a refund claim for Rs. 5 lakhs on 18-4-2006 before Development Commissioner, KASEZ. This was transferred to Customs and finally the refund of Rs. 5 lakhs was sanctioned on 23-9-2009 but the claim for interest on the deposit with effect from three months after the date of filing of refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt is payable only when the amount is duty. 4. In the case of Akai Impex Limited, the Tribunal had taken a view that interest is not admissible on the ground that during the relevant time the Customs Act did not have any provision for payment of interest. The Tribunal observed that "it is not contended before us that there was at the relevant time any provision in the Customs Act, 1962 for levy of interest". In that case, the Tribunal was dealing with the appeals filed by the Commissioner wherein there was a proposal for recovery of interest on the duty evaded by importers in respect of goods imported under advance license scheme and sold without fulfilment of conditions. The issue involved was not the question of refund of duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department that no interest is payable as per the provisions of Section 27 of Customs Act, 1962 and thereafter, the Hon'ble High Court allowed the interest. Therefore in that case interest was allowed keeping statutory provisions in view. In the case of Nino Chaka (P) Limited v. Commissioner of Customs - 2009 (240) E.L.T. 253 (Tri.), Galaxy Entertainment Corporation Limited - 2010 (259) E.L.T. 427 (Tri.) it was held that interest was payable for the amount deposited during the course of investigation. In these cases also the claim was made for Revenue that amount deposited during the investigation cannot be considered as duty but to be treated as deposit. Further, in the case of Motorola India Pvt. Limited - 2006 (206) E.L.T. 370 (Tri.-B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited - 2006 (202) E.L.T. 177 (Tri.-LB.) = 2008 (10) S.T.R. 91 (Tri.-LB). I find that the observations of the Larger Bench in Para 6 are relevant and accordingly, I reproduce the same :- 6. When a decision rendered by the Apex Court is not considered, it is obvious that non-consideration of such binding precedent would constitute an error apparent on the face of the record, by the applicability of the doctrine of per incuriam. In cases where due to inadvertence or oversight, Court or Tribunal fails to notice the statutory provision or a binding authority, the principle of per incuriam may apply, as held by the Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports reported in (2001) 6 SCC 356 (see paragraphs 19 and 24). However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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