TaxTMI 
TaxTMI 
2021 (7) TMI 343
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....a, dated 08.01.2013, by the 4th Respondent, is under challenge in the present Writ Petition. The petitioner is M/s. Hyundai Motor India Limited and states that M/s. Hyundai Motor Company, Korea, obtained approval to establish HMIL in India from the Foreign Investment Promotion Board, Government of India, dated 11.03.1996. HMIL was registered on 06.05.1996 with the Registrar of Companies, Chennai. The facts regarding the establishment of the petitioner-Company as well as the nature of business are not disputed between the parties. The business transactions as well as the importing of goods by the petitioner are also not disputed by the respondents. 2.The issue in nutshell are elaborated by the learned counsel for the petitioner that the c....
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....Commissioner's finding is that since the appellant was in automobile production from 1998, "there is no transfer of any new technology to any product." This finding is contrary to the terms of agreement which mentioned new cars proposed to be introduced. There is no evidence on record to suggest that technology transfer agreement is a fraud and has been entered into only to facilitate payments under false pretext. The Commissioner's observation that an already established car company would not require infusion of new technology is contrary to the common knowledge that new automobile models or upgrading existing models is a high cost and high technology activity. Therefore, the basic premise of the impugned finding itself is faulty. ....
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.... CESTAT in Appeal No.C/42049/2015 and the said appeal is pending. While filing the said appeal, the petitioner made a pre-deposit as required under the provisions of the statute. When the pre-deposit is made and the issues raised are subjudiced and in many such cases, the authorities are reopening the refunds already made. The Board issued a Circular No.984/2014-CX, dated 16.09.2014 and para 4 of the Board's order is extracted hereunder: "4.Recovery of the Amounts during the Pendency of Appeal: 4.1 Vide Circular No.967/1/2013, dated 1st January, 2013, Board has issued detailed instructions with regard to recovery of the amounts due to the Government during the pendency of stay applications or appeals with the appellate....
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....t of time, as with reference to the very same claim for the year 2006-10, the appeal is pending before the CESTAT and the petitioner has also made pre-deposit as contemplated, which was admitted. When a pre-deposit is made as per the Circular, the respondents cannot claim return of refund already made. 7.The learned Senior Standing Counsel appearing on behalf of the respondents made a submission that the appeal pending before the CESTAT is no way connected with the period for which the impugned demand notice was issued. Therefore, there is no infirmity as such. This apart, the EDD refund was made erroneously to the petitioner and the Department is entitled to recover the erroneous refund made. To substantiate the said ground, the learned....
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....le in law." 8.Considering the arguments as advanced, this Court is of the considered opinion that the issues relating to the import period from 1997- 2002 and the EDD deposit made were refunded pursuant to the orders passed by the CESTAT. When such a refund is made and the petitioner also received the refund amount, thereafter, the Show Cause Notice was issued for the imported period from 2006-2010. Based on the same principles, the petitioner filed the appeal before the CESTAT and the said appeal is pending, and the petitioner made a pre-deposit, as required under the statute. In such circumstances, the Board also issued a Circular dated 16.09.2014 that if an opinion is formed that the EDD was erroneously refunded as the matter is pe....