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TMI Blog2015 (10) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. 4. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No.5983 of 2015. 5. The petitioner firm has established a manufacturing unit at KASEZ for manufacture of industrial wipers. The petitioner firm was allowed to import worn and used clothing as raw materials and such raw materials were used in relation to manufacture of wipers and garments. The petitioner firm sold a quantity of 9.110 MTs of goods manufactured by it to one M/s Archee Trade Links. The sale of goods by any SEZ unit to a local person situated in India is considered as import, and accordingly, the provisions of the Customs Act, 1962 (hereinafter referred to as "the Act") are made applicable to the import of goods and are required to be followed by the local person procuring such goods from any SEZ unit. Accordingly, the buyer M/s Archee Trade Links filed a Bill of Entry for the above goods and declared the same as old and used mutilated rags, classifying the same under the Customs Tariff Heading 63101020. It was the case of the customs authorities that the local entities like the petitioner firm, who were in the nature of DTA units had, in collusion with SEZ uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dham, and therefore, the same should be filed with KASEZ, Gandhidham. The petitioner, therefore, submitted refund claim before the said authority, which however, refused to refund the amount in question on the basis that there was no provision in the SEZ Act and rules or regulations made thereunder for refund of excess customs duty paid by SEZ units. The petitioner, thereafter, approached this court by way of a writ petition being Special Civil Application No.12654 of 2014 as the legitimate claim of the petitioner was being tossed between two Departments. By a judgment rendered on 20.11.2014 in the above referred writ petition, this court held that the Commissionerate of Customs would continue to hold the authority under section 27 of the Customs Act, 1962 to entertain refund claims of excess payment of customs duty, redemption fine or penalties, as the case may be, adjudicated and collected by them under the Customs Act even with respect to units situated in SEZ areas. This court in the above order, further observed that whatever refund claims being returned to the petitioners by the Customs Commissionerate, the petitioners would represent the same to the appropriate authority. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld on to the money merely because the adjudication was proceeding on the original show cause notice. It was pointed out that the special leave petition against the above decision of the Bombay High Court came to be dismissed by the Supreme Court. Reference was also made to the decision of the Andhra Pradesh High Court in the case of Afcons Infrastructure Ltd. v. Union of India, 2006 (193) ELT 278 (A.P.), wherein the court observed that the CEGAT had remanded the matter to the adjudication Commissioner of Central Excise for de novo consideration. The order of the Collector was set aside. Though it is a remand order for de novo consideration by the Commissioner of Central Excise, insofar as the appeal before the CEGAT is concerned, the matter can be said to have been finally disposed of setting aside the order of the Collector. The court observed that the pre-deposit made by the petitioner under section 35F of the Act is thus liable to be refunded with interest. A deposit under section 35F is for availing the remedy of appeal. Such amount has to be returned when the appeal is allowed, as in the case at hand. The decision of the Delhi High Court in the case of Voltas Limited v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kandla, has preferred an appeal which is pending for final hearing. It was, accordingly, urged that the petitions being devoid of merit, deserve to be dismissed. 8. Mr. Priyank Lodha, learned Central Government Standing Counsel for the respondents No.1 and 3, reiterated the submissions advanced by the learned counsel for the respondent No.2. 9. The facts are not in dispute. Orders-in-original came to be passed against all the petitioners herein levying duty and/or penalty and/or redemption fine. Pursuant to such orders-in-original passed in their respective cases, the petitioners deposited the amounts towards duty and/or penalty and/or redemption fine respectively. Such orders-in-original came to be challenged by the petitioners before the Appellate Commissioner, who held that the adjudicating authority was not competent to adjudicate the matters and accordingly, annulled the orders-in-original and remanded the matters to proper authority for deciding the cases de novo. Consequently, as on date, all the orders-in-original passed by the adjudicating authority, pursuant to which the amounts have been paid by the petitioners towards the duty and/or penalty and/or redemption fine, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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