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TMI Blog2006 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 3 crores made during the investigation. Revenue shall consider the return of the balance amount of deposit in accordance with the law. The applicant is granted immunity for offences under the Customs Act, (ii) 1962 read with the IPC in respect of the case covered under the application and the SCN in question. The applicant is granted immunity from fine and penalty under the (iii) Customs Act, 1962 in respect of the case covered by the application and the SCN in question. No interest is chargeable under Section 28AB of the Act as the duty in (iv) this case became payable before the said Section was inserted in the Customs Act by Finance (No. 2) Act, 1996. Further, the importer made a large deposit during the investigation itself, far in excess of their correct duty liability. 3.The writ petition was listed before this Court for the first time on 25-4-2003 but was adjourned on the request of the counsel for the Petitioner to 28-5-2003, and thereafter for the same reason to 19-8-2003. On 19-8-2003 yet another adjournment was asked for in order to cite some more judgments to satisfy the Court that despite the fact that the order passed by the Settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no stay has been granted by this Court and secondly in the event that the Writ Petition is disposed of in favour of the Petitioner, the Respondent would have to pay interest, whereas in the present situation the Petitioner would have to pay interest to the Respondent. List on 11th December, 2006. Our attention has been drawn to Circular No. 802-35-2004-CX., dated 8-12-2004. The salient portion of the Circular reads as follows : The Board has noted in the observations of the Hon'ble Supreme Court in 3. its order dated 21-9-2004 and has decided that pre-deposits shall be returned within a period of three months of the disposal of the appeals in the assessee's favour. Accordingly, the contents of the Circular No. 275-37-2000-CX. 8A dated 4. 2-1-2002 [2002 (139) E.L.T. T38], as to the modalities for return of the pre-deposits are reiterated. It is again reiterated that in terms of Hon'ble Supreme Court's order such pre-deposit must be returned within 3 months from the date of the order passed by the Appellate Tribunal/Court or other Final Authority unless there is a stay on the order of the Final Authority/CESTAT/Court, by a superior Court. Delay beyond this period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod prescribed in the appellate stay order for fulfillment of the conditions. In respect of stay applications pending against the Orders-In-Original of (c) the Commissioners before the CESTAT a view similar to Board's Circular No. 396-29-98-CX dated 2-6-1998 should be taken. The two provisos to Section 35C (2A) of the Central Excise Act, 1944 read as follows : Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of Section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order. Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated? In view of the above stated legal position, the field officers should refrain from taking coercive action till the period of six months of filing a stay petition before the CESTAT, or till the disposal of the stay petition, whichever is earlier. The instructions in this clause relate to only stay application filed with first stage appeals not to those with further appeals i.e. only in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proper to effect a refund whilst the stay application filed in the present proceedings remained pending. In our opinion, however, there is no scope for claiming bonafides to make the refund, at least on a reading of the Orders passed by this Court on 27-11-2006. In our view there is no reason for the reliance on the above extracted Circulars because the focus of both the Circulars is on the Department. The Circulars direct that the officers of the Department should not adopt coercive steps for recovery of duty in a precipitate manner. 8.It is a matter of great regret that till date requisite action has not been taken by the Petitioners. Instead, Mr. Dubey would have us believe that the concerned Commissioner was under the bona fide belief that the refund ought not to be made during the pendency of this writ petition and more particularly owing to the pendency of the stay application. We may simply reiterate that no orders had been passed, or for that matter have been pressed for, on the stay application. We may add that we find it difficult to accept this plea of bona fide belief particularly when the Department would itself never accept such a plea of an assessee who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th interest under Section 27A of the Customs Act, 1962 had been made in respect of the period from 31-1-1996 till the date of actual payment. At the time of the final hearing it was further noted that the said amount had already been paid on 30-6-2001. The Department was directed by the Division Bench to pay interest at the rate applicable: in accordance with Notifications issued under Section 27A on the said amount for the period from the date of expiry of three months from the date on which the Petitioner initiated the Refund Application till the date of payment of refund. In Rishi Gases Pvt. Ltd. v. Collector of Customs, Calcutta, [1997 (94) E.L.T. 50 (Cal.)] the High Court of Calcutta was confronted 'with the claim for the refund of additional customs duty, fine and penalty totalling a sum of Rs. 1,64,963.33p. The Court directed the refund together with interest at the rate of 15 per cent per annum as per the then existing Notification. Our learned Brother Badar Durrez Ahmed, J. in Siddharth Intercontinental Hotels (I) Ltd. v. Collector of Customs, 2004 (166) E.L.T. 160 (Del.), had directed payment of interest on the amount of the refund from the date of the application viz. 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.Assuming that the Respondent is entitled to a refund of Rs. 2,67,36,968/-, the Department has needlessly incurred a liability for payment of interest at the rate of 6 per cent from 20-11-2002 to 19-12-2006 i.e. Rs. 65,50,557/-. Furthermore, it has often been contended on behalf of Department that where a party presses for a refund and it is ultimately found that no refund was legitimately due, the Department would be entitled to claim interest at the rate of 15 per cent on the said amount at least on the premise of delayed payment of duty. In the event that the writ petition were to be decided in favour of the Petitioner/Department, by 19-12-2006 the Respondents would have become liable to pay interest at the rate of 15 per cent on the said sum of Rs. 2,67,36,968/- which from 20-12-2002 to 19-12-2006, would be as much as Rs. 1,63,76,392/-. In other words if the Respondents request for refund the excise duty had been acceded to instead of paying Rs. 65,50,557/- the Department may have been able to stake a claim for the amount of refund together with Rs. 1,63,76,392/-. It is thus always in the interest of the Department to refund the excess amount of duties as per the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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