2021 (5) TMI 260 - HC - Customs

Court grants mandamus for refund post-appellate order, emphasizes interim protection, directs swift revision disposal.

The court granted the writ petitions seeking mandamus for refund applications based on an appellate order allowing redemption of seized assets on payment ... Refund of the redemption fine and penalty remitted - Department application for revision is pending but no stay / interim protection sought against the order of Commissioner (appeals) - HELD THAT:- Admittedly, no interim protection has been obtained by the respondents - Though the provisions of Section 129DD do not expressly provide for seeking or grant of interim protection, such provision for interim protection is implicit in any provision for appeal or revision and this is a position settled by several decisions including a decision of this Court in the context of the Income Tax Act 1961, in the case of Paulsons Litho Works vs. Income-Tax Officer [1993 (11) TMI 50 - MADRAS HIGH COURT]. Thus, in cases where the Customs Department takes re-course to revision before the Government, it is incumbent upon them to also seek interim protection for retention of the assets seized by them at the original instance, if they so desire. Failure to do so would entitle the assessee in the respective cases to seek return/refund of the assets seized. Petition disposed off. Issues:1. Mandamus for refund applications.2. Entitlement to refunds based on appellate order.3. Defence of respondents regarding revision application.4. Interim protection under Section 129DD of the Customs Act, 1962.5. Seeking speedy disposal of revision applications.Analysis:The writ petitions sought a mandamus directing the Principal Commissioner of Customs and Assistant Commissioner of Customs to act on refund applications and cause refund of amounts paid by the petitioners. The entitlement to refunds was based on an order of the Commissioner of Customs in favor of the petitioners, allowing redemption of seized assets on payment of fine and penalty. The petitioners claimed they were entitled to a refund of the redemption fine and penalty they had paid.The defence of the respondents was that a revision application had been filed under Section 129DD of the Customs Act, 1962, and until the revision applications were disposed of, they were not inclined to consider the request for a refund. It was noted that no interim protection had been obtained by the respondents. The court highlighted that even though Section 129DD did not expressly provide for interim protection, such provision was implicit in any appeal or revision process. Failure to seek interim protection could entitle the assessee to seek return or refund of seized assets.The petitioners did not insist on immediate relief but sought a direction for the speedy disposal of the revision applications. The court directed the Principal Commissioner to dispose of the revision applications within twelve weeks after hearing the petitioners, as assured by the respondents' counsel. A time frame of three months was fixed for the disposal of the applications.Ultimately, the writ petitions were disposed of with the direction for the speedy disposal of the revision applications within the specified time frame. No costs were awarded in this matter.