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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 ..... 1996. Thereafter, the department initiated show cause proceedings against the appellant, seeking for recovery of the Customs duty amount for alleged fraudulent use of the Advance Licences. Since the matter arising out of the show cause notice dated 13-3-1997 was not adjudicated for over 17 years, the appellant had filed the writ petition before the Hon'ble Bombay High Court, which was disposed of vide order dated 15-7-2015 [2015 (322) E.L.T. 429 (Bom.)] in favour of the appellant. While allowing the writ petition, The Hon'ble High Court had quashed the show cause notice and prohibited the department in passing any adjudication order in response to such notice. Further, the Hon'ble High Court had also granted liberty to the appellant herein to institute proceedings permissible under law for recovery of the amount deposited by it, with accrued interest. 1.2 As a consequence of favourable order passed by the Hon'ble High Court, the appellant vide its letter dated 4-9-2015 had claimed refund of amount deposited during the course of investigation. The matter was adjudicated vide order dated 22-12-2015, wherein the aforementioned amount deposited by the appellant together with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on new set of facts before the Tribunal cannot be maintained or entertained. In this context, he has placed reliance on the judgment of Hon'ble Supreme Court in the case of C.C.E., Vadodara v. Steelco Gujarat Ltd. reported in 2009 (242) E.L.T. 161 (S.C.) and Warner Hindustan Ltd. v. C.C.E., Hyderabad, reported in 1999 (113) E.L.T. 24 (S.C.). 4. Heard both sides and examined the case records. 5. In this case, the appellant through letter dated 4-9-2015 addressed to the jurisdictional customs authorities, had claimed return of the amount deposited by it during the course of investigation into the matter by the department. Such amount was claimed by the appellant, pursuant to the order dated 15-7-2015 passed by the Hon'ble Bombay High Court in the Writ Petition No. 1536 of 2015. The relevant findings recorded in the said order are quoted hereinbelow : '14. As a result of the above discussion, we make the Rule absolute in terms of prayer clause (a). We quash the show cause notice and we prohibit the respondents from passing any adjudication order in furtherance thereof. 15. However, finding some merit in the objection raised but not expressing any opinion the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit of the principal amount in May, 1986, till its actual date of refund by the department on 22-12-2015. The above view point of Revenue was accepted by the Learned Commissioner (Appeals) and in support, the impugned order has relied upon the judgment of Hon'ble Supreme Court in the case of Commissioner of Central Excise v. ITC Limited, reported in 2005 (179) E.L.T. 15 (S.C.). The date of accrual of the interest amount, discussed in the impugned order is quoted below : '9. In view of the above, the impugned Order-in-Original No. 763/CAC/AC(E-II)/KB/2015, dated 22-12-2015 passed by the Asstt. Commissioner of Customs, Export-II, New Customs House, Mumbai, is modified to the extent that interest on refund of deposits made during the investigation is payable from the expiry of three months of the order of the Hon'ble Bombay High Court i.e. from 15-10-2015 to the payment of refund.' 8. The above judgment relied upon in the impugned order is distinguishable from the facts of the present case inasmuch as the issue involved in the said case for decision was, whether pre-deposit made as a pre-condition for hearing of appeal under the Central Excise Act, 1944 was required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128A of the Act can be appealed against before the Tribunal. Thus, the appellant has correctly filed the present appeal before the Tribunal. Shri Mondal has expressed his view point that the appellant has raised altogether the new ground before the Tribunal, which was not urged at the first appellate stage and thus, the appeal is not maintainable before the Tribunal. We are not in agreement with such submissions made by the 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. Thus, the ratio of judgment relied upon by Revenue is not applicable to the facts of the present case. 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. In this context, the Hon'ble Supreme Court in the case of Assistant Collector of C.Ex. v. Ramdev Tobacco Company, reported in 1991 (51) E.L.T. 631 (S.C.) have ruled that a pure question of law can be entertained at appellate st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - under protest between 13-5-1996 to 27-5-1996. The second respondent eventually issued a show cause notice dated 13-3-1997 alleging that the first petitioner had been issued advance licences with the condition that they would export polyester/viscose blended fabrics. It was alleged that the second petitioner in collusion with Ashok Pokharkar of M/s. Amol Shipping Agency furnished copies showing incorrect/manipulated or false information regarding quantities, weight, composition of export goods. Thus, they wrongfully availed of the benefits of the licences by claiming fulfillment of export obligation. They secured a bond waiver and further obtained endorsement in respect of 33 advance licences making them freely transferable. Since these advance licenses were sold to various parties who imported goods from several countries without payment of duty, there was a loss caused to the exchequer and that is why a show cause notice was issued demanding a sum of Rs. 2,83,59,851/- and to be adjusted against the deposit. 4. The complaint of the petitioners is that this show cause notice a copy of which is at 'Exhibit D' was never adjudicated though the petitioners approached the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass a adjudication order within a time frame and it deserves that opportunity. We do not find that the statements made on affidavit are enough to grant such opportunity. If the law postulates early end to such proceedings and there is no period of limitation prescribed, does not mean that the proceedings initiated could be concluded at the sweet will and fancies of the department. The department should not have blamed the petitioners for having approached this Court belatedly, but the department must appreciate that the petitioners are seeking two reliefs one is for quashing of proceedings and secondly, a direction to the department forthwith refund the deposit and with interest. 13. We can take note of the department's objection with regard to the petitioner's approaching this Court after a lapse of several years for return of money but certainly we cannot refuse any relief to the petitioners of quashing of the proceedings of the show cause notice once the legal principles are well settled. The period that has been taken in this case for adjudication of the show cause notice cannot be said to be reasonable. If within a reasonable time the proceedings have to be concluded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s). This appeal was allowed by the Commissioner (Appeals) by the impugned order, restricting the amount of interest from the date of the order of Honourable High Court to the date of refund. 16. Admittedly in the present case the show cause notice issued by the revenue authorities in the year 1997 was never adjudicated by the concerned Commissioner, and has been quashed by the Honourable High Court. The amounts deposited by the appellants herein where never adjudged as duty under the Customs Act, 1962 and hence the order refund of the said amount along with the interest cannot be considered to be a refund made under Section 27 of the Customs Act, 1962. Since this order allowing the refund along with the accrued interest is not an order made under any of the provisions of the Customs Act, 1962, hence could not have been subjected to review as per Section 129D(2) of Customs Act, 1962 for directing the appeal before Commissioner (Appeals). The provisions of Section 129D(2) are reproduced below : '(2) The Principal Commissioner of Customs or Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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