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TMI Blog2018 (2) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... awarded, absent a specific provision in the statute. Section 27 of the Act is not such a provision and that is erroneously relied upon. Once that provision together with Section 27A deals with specific cases of refund application claiming refund of duty or interest paid or borne by the applicant, then, that refund being sanctioned, delayed payment of that amount carries interest. Such is not the nature of the amount recovered from the petitioner nor borne by him. Once that is the admitted position, then, in the given facts and circumstances, we do not see how a claim for interest can be considered, leave alone granted. The petitioner may lay a claim for interest on receipt of such amount belatedly - petition dismissed. - Writ Petition No. 983 of 2016 - - - Dated:- 6-2-2018 - S.C. DHARMADHIKARI SMT. BHARATI H. DANGRE, JJ. Mr. Vivek Kantawala with Mr. Amey Patil i/b Vivek Kantawala Co. for the petitioners. Mr. Pradeep S. Jetly for the respondents. P.C.: This petition under Article 226 of the Constitution of India seeks the following reliefs: (a) That this Hon'ble Court be pleased to issue Writ of Certiorari or any other Writ, Order or direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 4. Being dissatisfied with this order, an appeal was filed before the Customs, Excise and Gold (Control) Appellate Tribunal. That Tribunal made an order on 8th February 2002 and reduced the fine to ₹ 1,50,000/and penalty of ₹ 50,000/. 5. The petitioner then says in this petition that even the Department was aggrieved by a part of the order in original and appealed to the Tribunal, but the Department's appeal was dismissed by the Tribunal on 15th November 2002. Against this order, the Department preferred a writ petition in this Court being Writ Petition No.793 of 2002 which also was dismissed on 23rd August 2006. 6. The petitioner sought refund of the amount paid and that application of the petitioner ended in an order, copy of which is annexed to the memo of this petition at Annexure D page 43 of the paperbook. The petitioner was sanctioned a refund in the sum of ₹ 28,56,650/under this order dated 23rd September 2010. However, the actual payment or receipt is of 4th December 2015. 7. Mr. Vivek Kantawala, learned counsel for the petitioner, would argue that by virtue of the findings and the ultimate conclusion in this order, the refund was san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t thereof or in case of reassessment, from the date of such reassessment. (2) If, on receipt of any such application, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government at any time by notification in the Official Gazette. 27A. Interest on delayed refunds. If any duty ordered to be refunded under sub-section (2) of section 27 to an applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below five percent and not exceeding thirty percent per annum as is for the time being fixed by the Central Government by Notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty: Provided that where any duty, ordered to be refunded under sub-section (2) of section 27 in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. 10. Perusal of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication was passed post service of a show cause notice on the petitioner. That ended with a direction to pay redemption fine and penalty as above. It is this application which was dealt with by the Deputy Commissioner of Customs. While dealing with the application for refund, the Deputy Commissioner observed that there was no necessity of obtaining any permission from the Reserve Bank of India, in that the Deputy Commissioner relied on the order passed by the CESTAT in some other case. It is based on these findings that the refund came to be sanctioned. 14. We cannot consider the claim for payment of interest within the statutory mechanism as urged by Mr. Kantawala de hors these facts. If any such fine, which was imposed together with penalty, has been set aside in an adjudication order or quantum has been reduced, but, in the meanwhile, certain sums are paid, then, on eventual success the amount paid in excess could be refunded. Merely because such a refund application has been considered on the basis that the power to confiscate and impose redemption fine and penalty would include within its purview a power to grant the refund of the excess amount, still for such delaye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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