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TMI Blog2021 (4) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid in good faith. The amount that was paid for imported the Remelted Lead Ingots cannot be retained. There is no justification in not ordering refund of ₹ 6,85,687/- being the difference in the above amount to the petitioner. The respondent Customs Department can at best order confiscation of the imported Caustic soda and Industrial Salt with an option to the petitioner to pay fine in lieu of confiscation under Section 125 of the Customs Act, 1962. It cannot force Customs Duty on imported goods on the petitioner - there is no justification in not refunding the aforesaid differential amount of ₹ 6,85,687/- to the petitoner. Once the goods are ordered to be consficted assuming they are liable to be confisated, they become the property of the Union of India under Setopm 126 of the Customs Act, 1962. Petition allowed. - W.P.Nos.28048 & 28049 of 2017 And M.P.Nos.30118 & 30119 of 2017 - - - Dated:- 25-3-2021 - Honourable Mr. Justice C.Saravanan For the Petitioner : Mr.Hari Radhakrishnan For the Respondents : Mr.K.Ravi SPC COMMON ORDER The petitioner has impugned the show cause notice dated 21.09.2017 issued by the 1st respondent bearing refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the 2nd respondent dated 12.08.2015 the 2nd respondent in Order-in-Original No.40754 of 2015, the petitioner filed an appeal before the Commissioner of Customs (Appeal-II) in C3-II/606/R/2016-SEA. The said Appeal came to be disposed by an order dated 05.08.2016 in Order in Appeal C.Cus II No.756 of 2016 with the following observations: 7.In view of the discussions as above, I set aside the impugned order and the LAA is directed to get a reply from the DIU as to whether any offence case is booked in respect of these goods. The refund claim is already pending for more than three months and interest would have to be paid on delayed refund if paid eventually, as per provisions of Section 27A, after 3 months from the date of application i.e.17.04.2014, in the light of the Hon'ble Supreme Court order in the case of M/s.Ranbaxy Laboratories Ltd Vs.UOI reported in 2011(273) ELT 3 (SC). 7.Under these circumstances, the petitioner once again pursued with the refund claim. In the above background, the impugned show cause notice dated 21.09.2017 in S.Misc.28/2014-DIU has been issued by the respondent wherein the petitioner has been called upon to show cause as to why:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing practice. 9.It is submitted that the Customs duty was paid by the petitioner as early as 13.03.2014 and more than 7 years had lapsed and the refund claim has been denied. 10.The learned counsel for the respondent submits that the petitioner has no other option but to file a reply to the impugned show cause notice and therefore the present writ petition was liable to be dismissed. He submits that the imported goods were confiscable and therefore the petitioner cannot have a remedy under Section 23 of the Customs Act, by abandoning the imported cargo. 11.The learned counsel for the respondent further submits that in any event, the petitioner can be directed to participate in the impugned show cause proceedings with a direction to pass appropriate orders in accordance with law within a period of 3 months from the date of receipt of a copy of this order. 12.Heard, the learned counsel for the petitioner and the respondent. 13.The petitioner appears to be a victim of the chinese exporter. The petitioner had made a victim of fraud . The petitioner therefore, seek refund of the customs duty paid at the time of filing of Bill of Entry under the self assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. It cannot force Customs Duty on imported goods on the petitioner. 21. Therefore, there is no justification in not refunding the aforesaid differential amount of ₹ 6,85,687/- to the petitoner. Once the goods are ordered to be consficted assuming they are liable to be confisated, they become the property of the Union of India under Setopm 126 of the Customs Act, 1962. 22.The respondent Customs Department can auction and appropriate the proceeds towards fine that may be imposed against the petitioner in lieu of confiscation under Section 125 of the Customs Act, 1962. This exercise ought to have been done much earlier. Both the respondent Customs Department was responsible for the delay in as much as show cause proceedings was initiated at an earlier point of time and the petitioner due to present writ petition. 23. Therefore, to meed ends of justice, I direct the respondent to refund a sum of ₹ 6,85,687/- being defference between the value of the goods imported and the customs duty paid to the petitioner within appeal of 30 days from the date of receipt of this order together with interest at 7.5% from the date of payment till the date of refund. Since the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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