TaxTMI 
TaxTMI 
2017 (5) TMI 864
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....e same under the heading 8525.20 of the Customs Tariff, for which they were allowed clearance at the concessional rate of duty under Notification 49/2000 - Cus dated 27.04.2000 under the Export Promotion of Capital Goods scheme, subject to the fulfillment of export obligation. 3. Subsequently, when petitioner's licence under the aforesaid scheme was cancelled by the Director General of Foreign Trade, it was issued with a notice by the Department requiring to pay differential duty for the sum of Rs. 5,07,09,527/- as per the classification under heading 85.28 of the Customs Tariff, due to which petitioner paid the duty liability of Rs. 3,81,16,852/-. The Deputy Commissioner confirmed the demand of differential duty and being aggrieved, petitioner preferred an appeal before the Commissioner(Appeals). During the pendency of the Appeal as per provisions of Section 129E of the Act, petitioner paid an amount of Rs. 1,15,15,214/- under protest in respect of the demand confirmed in the order. The Commissioner (Appeals) upheld the classification under the Custom Tariff heading 85.28 against which petitioner preferred an appeal before the appellate Tribunal. 4. The appellate Tribunal al....
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....nd on intimation a fresh cheque was issued for the said amounts, which also had some complication initially, however sorted out and cheque was honoured. But in spite of all these efforts there was no response and as a last attempt, Ext.P23 lawyer notice was issued. To the said notice Ext.P24 letter was issued by 3rd respondent stating that appropriate interest was provided to the petitioner. However the applicable interest under law as claimed by the petitioner is not paid to it, despite several written and verbal requests. According to the petitioner, the inaction of the 3rd respondent in not granting the interest is in direct conflict with the law laid down by the Supreme Court and followed by various courts. Hence seeking appropriate directions, this writ petition is filed. 6. Second and third respondents have filed a detailed counter affidavit virtually admitting the facts and circumstances narrated above in respect of the proceedings that took place. Apart from the same it is contented that respondents admitted the receipt of the advocates letter dated 16.11.2016. However, respondent in a way has become functus officio on matters relating to payment of any further interest an....
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....ment of the amount to such deposit addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs as the case may be, will suffice for the purpose." 8. It is also submitted that when the above circular was in existence after cegat order, no officer could have granted refund suo motu due to (1) Petitioner himself calling the impugned payment as differential duty and (2) Petitioner is not submitting a letter for return or refund of the amount. Therefore according to the respondents any such payment by the then Assistant Commissioner could have been violation of the circular dated 02.01.2002. That apart it is stated that after the judgment of the Supreme Court on 28.7.2015, department requested for certain documents from the petitioner to verify the refund bill. However, petitioner replied that most of the original documents including the bill of entry and challan evidencing payment of differential duty were destroyed in the floods in Mumbai 2005. Thus the non production of the required documents for sanctioning refund under the statute compelled the respondents to issue a show cause notice to the petitioner, to show cause as to why refund claim should not be r....
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.... counsel for the petitioner and learned Standing Counsel appearing for the respondents 2 and 3 and perused the documents on record and pleadings put forth by the respective parties. 11. The questions to be considered are 1) whether the petitioner is entitled to get interest for the delayed payment on expiry of the three months from 18.11.2002 ie. the date of the order of the appellate Tribunal passed in favour of the petitioner, and 2) the rate of applicable interest as per the directions contained in Ext.P12 judgment. The contentions advanced by the learned counsel for the petitioner is that, since the appellate Tribunal has allowed the appeal preferred by the petitioner, petitioner is entitled to get interest at the rate of 12% from 18.11.2002 as held by the Apex Court in Commissioner of Central Excise (cited supra). On the other hand the contentions advanced by learned Standing Counsel for respondents 2 and 3 is that, the authority has received the order of the Supreme Court only on 04.08.2015 and therefore the authority is liable to pay interest to the petitioner on the expiry of three months from the said date. It is an admitted fact that the petitioner has not submitted any ....
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....ch deposit, requesting the return of the amount, along with an attested Xerox copy of the orderin appeal or CEGAT order consequent to which the deposit made becomes returnable and an attested Xerox copy of the challan in Form TR6 evidencing the payment of the amount of such deposit, addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs, as the case may be, will suffice for the purpose. All pending refund applications already made under the relevant provisions of the Indirect Tax Enactments for return of such deposits and which are pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be processed as such. Similarly, bank guarantees executed in lieu of cash deposits shall also be returned." 13. The same is further clarified in the notification dated 08.12.2004, relevant portion of which read thus:- "Reference earlier instructions on the above subject and looking to the instances arising out of non-implementation of the judicial orders, the Board has reason to review and reiterate the earlier Circulars on the subject of non-implementation of orders of CESTAT or any Final Authority in relatio....
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....ion after the dismissal of the appeal of the Department by the Apex Court on 28.07.2015 and therefore the Department is liable to refund the amount and pay interest at 6% from the said date. As I have stated earlier, the manner in which the refund of the money to be made is clear from the notifications ie. within three months of the disposal of the appeals in assessee's favour. Therefore, respondents are liable to refund the amount on expiry of three months from 18.11.2002 to the petitioner ie. the date of the order of the Appellate Tribunal, even if the application was submitted at a later point of time, especially due to the fact that the notifications are not restricting the payment of interest from the date of submission of application. 14. Now, the sole question remains to be considered is what is the nature of interest that the petitioner is entitled to get. As discussed above in the judgment Commissioner of Central Excise v. ITC (supra), the Apex Court confined the interest to 12% and further held that any judgment/decision of any High Court taking contrary view, will be no longer good law. The said judgment is rendered, in my considered opinion under similar circumstan....