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TMI Blog2019 (3) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Commissioner (Refund) vide his Order dated 29.04.2016 has appropriated the duty amount of ₹ 59,23,397/- out of the said amount of ₹ 1,24,37,308/-. Thus, there is no hesitation in holding that the amount of ₹ 1,24,37,308/- surrendered by the respondents by way of DEPB/Rebate claim has been considered as an amount deposited during investigation by the department itself and there is no dispute over this fact. Also, refund claim cannot be denied merely on the ground that there is no provision under law. Once it is accepted that the benefits surrendered by the respondents are in the nature of amount deposited during investigations, then the refund of the excess amount has to be paid/refunded. Appeal dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2004 was issued by the DRI proposing to appropriate the amount of ₹ 3,48,24,503/- deposited during the investigation against the duty amount proposed in the Show Cause Notice. The said Show Cause Notice was finally adjudicated by the Commissioner of Central Excise (Adjudication), New Delhi vide Order dated 20-06-2014 confirming a duty demand of ₹ 59,23,397/- along with interest and equal amount of penalty. A penalty of ₹ 5,00,000/- was also imposed on Mr. Dheeraj Saluja (Director/Partner of the firm), by the Adjudicating Authority. 3. Since the amount deposited by the respondents during investigation was much more than the amount which was finally confirmed against the respondents by way of duty, interest and penalty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to get the refund of the said amount. 6. The said refund claim of ₹ 65,13,911/- was rejected by the Assistant Commissioner (Refund) on the sole ground that there is no such provision/guidelines in the customs law to provide the refund in these types of situation in cash vide his order dated 31.10.2017. 7. The respondents filed the appeal before the Commissioner of Customs (Appeals, New Customs House, New Delhi against Order of the Assistant Commissioner (Appeals) passed the impugned order dated 11-07-2018, allowing appeal of the respondents with consequential relief . 8. The present appeal has been filed by the Commissioner of Customs, ICD, TKD, New Delhi against the order of the Commissioner of Customs (Appeals), New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the investigation and has appropriated the duty amount of ₹ 59,23,397/- out of the total amount deposited/surrendered; that the said order of the Assistant Commissioner, (Refund) dated 29-04-2016 has been accepted, as no further appeal has been filed; that from the above factual background it can be safely concluded that the department throughout, the right from Show Cause Notice stage till passing of refund, has considered benefit surrendered, as an amount deposited during investigation; that it would be totally paradoxical to say that the amount of ₹ 1,24,37,308/- surrendered by way of DEPB/Rebate benefit is an amount for purpose of appropriation of customs duty, but it is not an amount for granting the refund of the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the ground that there is no provision in law to grant the refund in cash where the duty was paid by using the DEPB. But the Hon ble High Courts in all the cases, allowed the appeal of the assessee. 17. Mr. S C Jain further argued that the case law of M/s Milton Laminatre Ltd. V/s Commissioner of Customs, Kandla and Commissioner of Central Excise, Indore V/s Midland Plastics Ltd. (2009 (240) ELT 251 (Tri.- Del.) relied upon by the Revenue is not applicable to the facts of the present case. In both the cases, the assessee has paid the customs duty by using the DEPB scripts and then claiming the refund of the excess duty paid by using the DEPB scripts. The said refund claims were under Section 27 of the Customs Act whereas in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Once it is accepted that the benefits surrendered by the respondents are in the nature of amount deposited during investigations, then the refund of the excess amount has to be paid/refunded. 21. In the case of Allen Diesels India Pvt. Ltd. 2016(334) ELT-624 (Delhi HC), the assessee had claimed refund of the Special Additional Duty in terms of Notification No. 102/2007-Cus which was denied by the department on the ground that duty was paid by using DEPB and hence refund cannot be sanctioned in cash. Hon ble Delhi High Court allowed the appeal of the assessee on the ground that there is no such bar in law to disallow the refund on the ground that there is no such provision. Likewise, in the case of Ratnamani Metals and Tubes Ltd Vis UOI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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