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TMI Blog2018 (12) TMI 1856X X X X Extracts X X X X X X X X Extracts X X X X ..... he Learned Special Counsel inasmuch as the issue dealt with by the Learned Commissioner (Appeals) in the impugned order concerning the period for entitlement of the interest amount was only agitated by the appellant through this present appeal - Even otherwise, in terms of Rule 10 of the CESTAT (Procedure) Rules, 1982, the Tribunal is empowered to consider new plea or grounds involving question of law urged at the time of hearing of appeal. The interest amount is payable from the expiry of three months of the order of Hon ble Bombay High Court i.e. from 15-10-2015 to the payment of refund - appeal is allowed in favour of the appellant, holding that it should be entitled for the interest amount from May, 1986 to 22-12-2015 as quantified by the Original authority. X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Commissioner (Appeals), holding that the respondent (appellant herein) should be entitled for interest amount for the period from 15-10-2015 to 22-12-2015. He has not accepted the claim of appellant that the interest amount should be computed from May, 1986 (date of deposit) till the date of its actual refund on 22-12-2015. 1.3 Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal. 2. Shri D.B. Shroff, Learned Senior Advocate appearing for the appellant submitted that the amount in question deposited by the appellant during the course of investigation was neither a duty of Customs nor pre-deposit made pursuant to any order passed by the department. He submitted that the said amount was claimed as refund pursuant to the order dated 15-7-2015 passed by the Hon'ble High Court. The Learned Senior Advocate further submitted that the order of review under Section 129D(2) of the Act is erroneous and not maintainable inasmuch as the order dated 22-12-2015 passed by the Assistant Commissioner, which was reviewed under the above statutory provision was not an order passed under the Customs Act, 1962. 3. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (b), the Learned Commissioner of Customs had sought to confirm the customs duty demand under the proviso to Section 28 of the Act and also to adjust the 'amount' deposited by the appellant towards the duty liability to be ascertained at a future date. In other words, till the date of issuance of the show cause notice, the amount deposited by the appellant was kept in the suspense account as 'mere deposit' and not posted in the appropriate Heads of Account as 'deposit of the customs duty amount'. Further, the Learned Commissioner (Appeals) at paragraph 6.3 in the impugned order dated 26-12-2017 had also endorsed the fact that the deposit made by the respondent (appellant herein) is neither duty nor pre-deposit and the same can only be considered as deposit only. We find that none of the provisions in the Customs Act, 1962 have dealt with the situation or prescribed any conditions or limitation for claim of such deposit amount along with interest for delayed refund of such principal amount by the claimant. 7. In this case, the department is not contesting the refund of principal amount sanctioned and paid to the appellant. Part of the interest amount paid to the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication order. Thus, it cannot be said that the dispute was resolved or settled in any appellate forum. 9. It is also an undisputed fact on record that the order dated 15-7-2015 of the Hon'ble Bombay High Court was accepted by the department in its entirety inasmuch as no appeal was preferred by Revenue against such order in the higher appellate forum. Since the Hon'ble High Court vide paragraph 15 in the said order had granted liberty to the appellant for initiation of proceedings for recovery of the sum deposited with accrued interest, we are of the considered view that claim of principal amount along with interest by the appellant and sanctioned by the original authority is in conformity and in compliance with the findings recorded by the Hon'ble Court. The order dated 15-7-2015 is very clear/explicit and thus, different interpretation cannot be placed to twist the same, in order to deny the interest benefit as claimed by the appellant. Thus, we are of the firm view that the appellant should be entitled for interest benefit from the date of deposit of the principal amount in May, 1996 till 22-12-2015, when such deposited amount was sanctioned and paid by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Member (Judicial) and I concur with the order recorded therein to the effect that appeal filed by the appellants need to be allowed. However I would record my reasons for arriving at the said order in the following paragraphs. 13. This claim for refund along with accrued interest has been made by the appellants in terms of the order dated 15th July, 2015 of Honourable Bombay High Court in Writ Petition No. 1536/2014. The relevant extracts from the said order of the Hon'ble High Court are reproduced below : '3. The petitioners complain that the first petitioner procured yarn and grey fabric from the local market which was sent to different dyeing firms for processing. After processing, the fabrics were cut and packed for export under the DEEC scheme or the Drawback scheme. The exports were handled by one export house agent known as M/s. Amol Shipping Agency. The first petitioner obtained 33 advance licences on the condition that the fabrics would be exported. The claim of the petitioners is that this obligation was completed and fulfilled. The licences were made freely transferable. The licences were, then, sold to various independent parties in the market. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long years the matter has remained unadjudicated, then, retention of money paid under protest or deposited without prejudice, would violate the mandate of Articles 14, 19(1)(g), 265 and 300A of the Constitution of India. It is in such circumstances that this Writ Petition has been filed. ….. 12. After hearing both sides, we are of the view that there is no denial of the fact that the investigations were carried out in this case way back in the year 1995. If the investigations were carried out in August, 1995, the show cause notice came to be issued on the conclusion thereof in March, 1997, then, we do not see any reason for the Revenue/Department not passing an adjudication order for 17 long years. The petitioners cannot be faulted for having approached this Court belatedly as is the contention of the Revenue. In the present case, it is the petitioners who brought to the notice of the department and repeatedly that the show cause notice is pending adjudication and that the department has retained the sum deposited. It is the petitioners who sought information by making an application under the Right to Information Act, 2005. The records were not available and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll objections with regard to the jurisdiction of the forum where the proceedings may be instituted and maintainability thereof, of both sides are kept open.' 14. From the facts as recorded by the Hon'ble High Court, it is quite evident that the appellants in the present case made certain deposits under protest prior to issue of the show cause notice. Though the show cause after completion of investigations was issued in the year 1997 the same was never adjudicated confirming the demand made in show cause notice. This show cause notice has been quashed by the Hon'ble Bombay High Court vide its above referred order, and revenue authorities have been barred from undertaking adjudication in the matter for the reason of delay of about seventeen years in the adjudication. While deciding the writ petition filed by the petitioners (appellant) in the matter High Court has directed for institution of proceedings by the petitioner for the refund of the amounts deposited by them (to be adjusted against any duty demand confirmed against them by that show cause notice) along with the accrued interest before the appropriate authorities. (Refer para 15 of the order of Honourable High Court). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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