9911796707
TMI Blog1993 (11) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... f, thus denying the benefit of the said notification. The stand of the petitioner-company is that whatever be the classification of the goods, the duty if any, payable by the petitioners, as and when paid becomes a credit of duty for the buyers who use castings in the manufacture of finished goods. Therefore, the contention is that the duty, if paid, becomes a credit for the buyers in terms of Rule 57A of the Central Excise Rules, 1944. The second respondent made two demands for Rs. 78,78,292.85 and Rs. 13,65,730.15 respectively. Against those demands the petitioner-company has preferred appeals before the Collector of Central Excise (Appeals) and those appeals were dismissed on 7-4-1992. Thereupon the petitioner-company filed further appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited. Thereafter, the petitioner approached the third respondent for extending the time for complying with its order and the third respondent accordingly extended the time up to 15-9-1993. It is under these circumstances that the petitioner-company has filed these two writ petitions in respect of the said two demands for the issue of a writ of mandamus to direct the first and second respondents to give certificate of duty payment in respect of the amounts paid and payable by the petitioners pursuant to the orders of the third respondent made on the said application. 3. There is a certain amount of vagueness in the plea of the petitioners. While they categorically state in the affidavit filed in support of the writ petition that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment in the case of the petitioners ultimately succeeding in the appeals before the third respondent. 5. The entire argument of the learned counsel for the petitioner is that merely because the payment is made in pursuance of an order of the third respondent in granting conditional stay, the payment will not lose its character as duty. Therefore, according to him, even though the payment is made in pursuance of the conditional order of stay pending certain appeals, it is only "duty that is paid" and therefore, they are entitled to the issue of a certificate which will enable its buyers to claim MODVAT credit. He has taken me through the relevant Rules 57-A, 57-B and also 57-E. Emphasis is made on Rule 57-E to suggest that there is an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand they make it clear that they are only depositing the amount in pursuance of the orders of the third respondent. Reliance is next placed upon the circular issued by the respondent as to the manner in which a deposit should be treated in the accounts. The department has clarified that the correct procedure is classified such deposits made pending disposal of appeals under the final revenue head of account from the initial stage itself. I am of the opinion that this is a matter of convenience of the department regarding the procedural aspects and this cannot be taken advantage by the petitioners for claiming that the deposit itself tantamounts to payment of duty. Reliance is next placed on the judgment of the apex court in Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of certain amounts deposited pending disposal of the appeal under Section 129 of the Customs Act, 1962. In holding that Section 27 of the Customs Act would not stand in the way of ordering the refund of the deposit made by the assessee pending disposal of an appeal, Calcutta High Court categorically states "such deposits should not be treated as payment of duty". The amount so deposited, according to the Calcutta High Court, remained merely as a deposit till the disposal of the appeal by the Tribunal. Once the assessee succeeded before the Tribunal the amounts should be refunded. 7. While concluding his argument learned counsel for the respondents states that respondents have no objection to issue a certificate acknowledging the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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