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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 ..... ded in favour of the Petitioner. - Special Civil Application No. 5983 of 2015, Special Civil Application No.5991 of 2015 - - - Dated:- 23-9-2015 - Harsha Devani And A G Uraizee, JJ. For the Petitioner : Kuntal A Parikh, Adv., Mr Paresh M Dave, Adv., P R Gupta, Adv For the Respondents : Mr Devang Vyas, Adv., Mr Rj Oza, Adv., Priyank P Lodha, Adv ORDER ( Per : Honourable Ms. Justice Harsha Devani ) 1. Rule. Mr. Priyank Lodha, learned Central Government Standing Counsel waives service of notice of rule on behalf of the respondents No.1 and 3 in each of the petitions and Mr. R.J. Oza, learned Senior Standing Counsel waives service of notice of rule on behalf of the respondent No.2. 2. Since common questions arise in this batch of petitions, the same were taken up for hearing together and are disposed of by this common judgment. 3. Having regard to the controversy involved in the present petitions, which lies in a very narrow compass, with the consent of the learned counsel for the respective parties, the matters were taken up for final hearing today. 4. For the sake of convenience, reference is made to the facts as appearing in Special Civil Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner of Customs was illegal. The Commissioner (Appeals), accordingly, annulled the adjudication order and held that proper adjudicating authority shall adjudicate the case by following principles of natural justice. Subsequent thereto, it appears that no proceedings have been taken against the petitioner firm and no adjudication order or decision fastening any liabilities on the petitioner firm for sale of the said goods had been made by any competent authority. The petitioner in the light of the fact that there is no adjudicated or concluded liability of any nature against the petitioner firm in respect of the sale of the above referred goods, filed a refund application dated 31.03.2014, claiming restitution of ₹ 40,000/- as a consequence of the adjudication order having been set aside by the Commissioner (Appeals). However, such refund claim papers which were filed before the Assistant Commissioner of Customs (Refund), at Kandla, came to be returned to the petitioner under a covering letter dated 10.07.2014 stating that the refund claim pertained to KASEZ, Gandhidham, and therefore, the same should be filed with KASEZ, Gandhidham. The petitioner, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the adjudicating authority, as on date, there is no adjudication against them, under the circumstances, the respondents have no authority to retain the amount paid by the petitioners towards penalty under the adjudication order. It was submitted that the impugned letter holding that the claims were premature, are contrary to the settled legal position as held by various High Courts as well as the Supreme Court. In support of such submission the learned counsel placed reliance upon the decision of the Bombay High Court in the case of Nelco Limited v. Union of India, 2002 (144) ELT 56 (Bom.), wherein the CEGAT had remanded the matter to the adjudicating authority for re-adjudication. The court held that since the parties were put back to the situation of a show cause notice, there was no provision under the Act which requires deposit of any amount at the stage of adjudication and that the only provision which requires deposit is section 35-F of the Act after the adjudication has quantified the liability towards duty. The court held that the respondents were, therefore, not entitled to hold on to the money merely because the adjudication was proceeding on the original show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been averred that the Appellate Commissioner has not decided the case of the petitioners on merits and remanded the case back for de novo adjudication by the proper authority in accordance with law and therefore, the claims for refund filed by the petitioners are thoroughly misconceived, inasmuch as, the defence of the petitioners has not been adjudicated on merits by the adjudication Commissioner. It was further submitted that the petitioner has made payment of penalty without any demur pursuant to the order-in-original and that such payment has not been made during the investigation or adjudication or during the pendency of appeal as pre-deposit in terms of the order passed by the Appellate Commissioner under section 129 of the Act, and hence, the payment made by the petitioner is neither deposit nor pre-deposit, therefore, the decisions cited by the petitioners would have no applicability to the facts of the present case. The learned counsel further pointed out that against the order-in-appeal dated 10.05.2013 passed by the Commissioner of Customs (Appeals), the Commissioner of Customs, Kandla, has preferred an appeal which is pending for final hearing. It was, accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners pursuant to the orders-in-original which have been subsequently annulled and hence, the impugned orders/ communications issued by the second respondent returning the refund claims filed by the petitioners as being premature, cannot be sustained. 10. For the foregoing reasons, the petitions succeed and are, accordingly, allowed. The impugned communications dated 09.02.2015 issued by the second respondent returning the refund claims filed by the petitioners as being premature, are hereby quashed and set aside. Having regard to the fact that the refund claims have already been returned to the petitioners, the petitioners shall submit such refund claims once again within a period of four weeks from today. If the petitioners file refund claims latest by 26th October, 2015, all such applications shall relate back to the first presentation before the Customs authority. The period of limitation for presenting such application and computation of interest in case eventually the refund is granted, shall be reckoned from such date. Upon such refund claims being filed by the petitioners, the respondent authorities shall decide the same in accordance with law within a period of four we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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