9911796707
TMI Blog2005 (9) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... y, pursuant to any Show Cause Notice was arrived at. The application is with a prayer, of interest on and of Rs. 10.00 crores sought from the Commissioner of Customs (Imports), Mumbai, since the amounts have been wrongly kept with them and applicants deprived of the same. The interest is claimed from the date of deposit of the said amount of Rs. 10.00 crores. (b) Pursuant to a contract with ONGC dated 22-1-1999, the oil rig was imported into India for the purpose of oil exploration and it commenced operations in the designated areas in April, 2000. Customs formalities were complied by filing a Bill of Entry. The Customs Department however issued a seizure memo dated 26-9-2001 pursuant to which the said rig was seized at a location in the sea off Bombay. Vide a letter dated 17-9-2001, provisional release of the said seizure of the rig was granted subject to the importer making a cash deposit of Rs. 10.00 crores and giving a bond of Rs. 50.00 crores. The said seizure was unsuccessfully challenged in the Bombay High Court by filing a Writ Petition No. 26232 of 2001. The Hon'ble High Court, vide an order dated 3-10-2001 confirmed the cash deposit of Rs. 10.00 crores and the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund application is pending for almost a year and that the cash security deposit along with the applicable interest accrued be returned. (vi) After the judgment of the Hon'ble Supreme Court on the appeal filed by the Respondent, the applicant again wrote to the Respondent by its letter dated 21-2-2005 to refund the cash deposit if Rs. 10.00 crores along with interest accrued and to cancel the bond of Rs. 50.00 crores. A copy of the said judgment of the Supreme Court was also sent. The Respondent by his order dated 7-3-2005 stated that the request for refund of deposit of Rs. 10.00 crores will be considered after receipt of the certified copy of the order of the Supreme Court, whereas the applicant had on 21-2-2005 sent a certified copy of the order. (vii) The applicant again by letter dated 14-3-2005 sent an additional certified copy of the order dated 14-2-2005 of the Supreme Court with a request to refund the amount of Rs. 10.00 crores and return of Bond of Rs. 50.00 crores. (e) In view of the above, there is no reason to conclude that, after the order of this Tribunal dated ....0-6-2003 setting aside the order of the Commissioner of Customs (Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (Administration) at Mumbai Custom House, in terms of the Board's instructions, they should be held responsible for dereliction of duty and also recovery of interest liability incurred by Revenue from the date of deposit which we would conclude to be eligible to the applicants, herein, following the decisions in the case of : (i) Kandhari Beverages Ltd v. Union of India - 2002 (144) E.L.T. 15 (P H). In this matter, the deposit was made on 7-2-1996 whereas the interest was awarded with effect from 2-11-1999. The Hon'ble High Court in Para 13 has held that "It is clarified that since the deposit had been made on 7-2-1996, and the order passed by the Commissioner on 9-5-1995, was set aside, the interest shall be calculated with effect from 7-2-1996 and not with effect from 2-11-1999. (ii) In the matter of Calcutta Paper Mills Mfg. Co. v. CEGAT Ors., 1986 (25) E.L.T. 939 (Cal.), where duty was recovered without authority of law and hence the refund of duty was ordered. The Court in Paras 17 18 held as under : There is another aspect of the matter. Section 11B of he Act came "17. into force on November 17, 1980. The applications for refund were made on De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under : "51. The other contention is with regard to the payment of interest. It is not disputed that the petitioner was not liable to pay any duty on the product processed by it. Thus, the collection made by the respondents is unauthorized. Interest is the return or compensation for the use or retention of another's money. The respondents have retained and enjoyed the benefit of such money so long. Accordingly, the petitioner is entitled to interest. Two decisions of Gujarat High Court support the view I have taken. In Vijay Textile, A partnership firm at Plot No. 4 Nerol Abendaly v. Union of India reported in 1979 E.L.T. 4 (J181) Gujarat High Court held that if the Excise Authorities have collected any amount as tax without authority of law, it is just and proper that they should pay interest at the rate of 12% per annum from the date of collection of the said amount till the date of actual repayment. Similar view was taken by the same High Court in the case of Jyoti Limited, Baroda v. Union of India reported in 1979 (4) E.L.T. 546. 52. For the reasons aforesaid, this application succeeds. The respondents are directed to refund the sums of Rs. 2,18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant be refunded to the appellant with interest @ 12% and the bank guarantee of Rs. 1,50,000 furnished by the appellant shall stand discharged. No order as to costs." (h) From the above case laws and submissions made, we find no reason to come to a conclusion other than that the present order dated 2-9-2005 issued by the Assistant Commissioner of Customs (Imports), Mumbai, is a mala fide document, totally devoid of any merits and needs to be disregarded and cannot be a deterrent claim of for settlement of the return of Rs. 10.00 crores deposited in compliance of the Bombay High Court's order in Writ Petition No. 2362/2001 with interest thereon. 4. (a) Besides the above observation, on this document, we do not want to pass any orders as regards the arrival of the fact of unjust enrichment to be applicable in the facts of this case, when that order is not an appeal before us. We would however observe that the principle of unjust enrichment cannot be invoked on lease agreement for oil drilling operations entered into by ONGC, since the value and duty thereunder of the imported goods will have no relationship with the lease amounts to be recover ..... 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