9911796707
TMI Blog2016 (7) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... he 3rd respondent to forthwith sanction and grant refund of Rs. 1,15,15,214/- made by the petitioner with interest from the date of order passed by the Appellate Tribunal, i.e., 18/11/2002. 2. The facts involved in the writ petition would disclose that the petitioner had deposited the aforesaid amount being the differential import duty as per classification 8528 and 8525.20 under protest. It was indicated in Ext.P4 that the payment is made under protest being the differential duty payable. The petitioner had also preferred an appeal against the order dated 22/5/2001 which was pending before the Commissioner of Central Excise and Customs (Appeals), Cochin. The appeal was decided against the petitioner. Petitioner preferred an appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seeking the aforesaid reliefs. 3. Counter affidavit has been filed on behalf of the respondents inter alia stating that when the Supreme court had directed that the excess duty paid has to be refunded in accordance with law, in order to comply with the said direction, show cause notice had been issued. There was no reason for the petitioner to have approached this Court and the 3rd respondent would have passed appropriate orders within a reasonable time. However, on account of the pendency of the above writ petition, no order has been passed in the matter. 4. The main contention urged by the petitioner is that the amount deposited was a pre-deposit in terms of Section 129E of the Customs Act and in terms of Section 129EE, there is an ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T.369 (Ker.)] had considered the scope and effect of Sections 129E and 129EE and it was held at paras 6 and 8 as under:- "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, on a request made for refund, the same shall be refunded immed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 2/1/2002, clearly indicates that the amount received under Section 35F has to be given as refund even without a formal application. The provisions under Section 129E is in pari materia with the provision under Section 35F. 6. Having regard to the overall factual and legal issues involved in the matter, there cannot be any dispute that the petitioner is entitled for refund of the aforesaid amount. The question of unlawful enrichment does not arise in the case at all. This is a case in which amount had been deposited under protest during the pendency of the appeal and the petitioner is entitled to refund. In the said circumstances, this writ petition is allowed as under:- (i) Ext.P3 is set aside. (ii) There will be a direction t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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