2007 (8) TMI 121 - AT - Central Excise

CESTAT Mumbai: No Fee for Refund Claim Appeals Exceeding Rs. 5 Lakhs

The Appellate Tribunal CESTAT, Mumbai ruled in favor of the appellants, holding that a fee of Rs. 5000 was not required for an appeal involving a refund ... Distinction between refund claims and demands for duty, interest or penalty - levy of fee under the provisions of Section 129A(6) of the Customs Act in appealsDistinction between refund claims and demands for duty, interest or penalty - levy of fee under the provisions of Section 129A(6) of the Customs Act in appeals - appellate registry's obligation to insist upon payment of higher fee where claim is for refund - Whether the registry could insist on payment of the higher fee where the appeal concerned a claim for refund rather than a departmental demand for duty, interest or penalty. - HELD THAT: - The appellant challenged the registry's requirement to pay a higher fee because the claim in the appeal was for refund and not a departmental demand for duty, interest or penalty. Reliance was placed on the language of the provisions contained in Section 129A(6) as well as earlier Tribunal authority in Hindustan Zinc Ltd. v. Commissioner of Central Excise (Appeals), Visakhapatnam , where a similar provision under the Central Excise Act was held not to attract fee for refund claims. The Tribunal observed that a refund claim cannot be equated with a demand for duty, interest or penalty and, in absence of any specific provision making fees leviable in respect of refund claims, the registry was not justified in insisting on the higher fee. Applying that principle, the objection raised by the registry was set aside and the registry was directed not to insist upon collection of the fee in respect of refund claims.The registry was directed not to insist on the higher fee for appeals founded on refund claims; the objection to the appeal on ground of fee payment was set aside.Final Conclusion: Appeal permitted to proceed without payment of the higher fee; registry directed not to insist upon fee for refund claims and the appeal was listed in its turn. Issues: Objection to payment of fee for appeal involving a refund claim.Analysis:1. The issue in this appeal before the Appellate Tribunal CESTAT, Mumbai was regarding the objection raised by the registry for payment of a fee of Rs. 5000 for an appeal where the claim involved exceeded Rs. 5 lakhs. The advocate for the appellants argued that since the matter pertained to a claim of refund and not a demand of duty, penalty, or fine by the department, no fee should be required. The advocate pointed out the provisions of Sec. 129A(6)(a), 129A(6)(b) & 129A(6)(c) to support the argument that fee is only leviable in cases of demand of duty, interest, or penalty amounts, not in cases like refund claims. Reference was made to a previous decision of the Tribunal in the case of Hindustan Zinc Ltd. v. Commissioner of Central Excise (Appeals), Visakhapatnam, where it was held that no fee is leviable in respect of refund claims under the Central Excise Act.2. After considering the submissions from both sides, the Tribunal found merit in the advocate's contention that a claim for refund should not be treated as a demand of duty, interest, or penalty by the department. In the absence of specific provisions requiring a fee for refund claims, the Tribunal directed the registry not to insist on the collection of the fee any further. The objection raised regarding the payment of fee was set aside, and the appeal was listed for further proceedings.This judgment clarifies that in cases involving refund claims, where the claimant is not seeking a demand of duty, interest, or penalty from the department, the payment of a fee may not be required as per the provisions of the Customs Act, 1962. The decision emphasizes the distinction between refund claims and demands for duty, interest, or penalty, highlighting that specific provisions govern the requirement of fees in different types of appeals.