TaxTMI 
TaxTMI 
2026 (7) TMI 1560
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....nducted by the Directorate of Revenue Intelligence, Mumbai/Ahmedabad (DRI) on the alleged gross undervaluation in the import of electronic goods viz., Car audio items, Car Speaker, CD Players, Amplifiers etc. imported by various importers using various IEC codes. On completion of the investigation, DRI, Ahmedabad had issued a Show Cause Notice (SCN) dated 27.02.2012 to M/s Surya Trading, answerable to Commissioner of Customs, Kolkata. The said SCN was adjudicated by the Commissioner of Customs (Port), Kolkata vide Order-in-Original No. Kol/Cus/Port/29/2013 dated 21.11.2013, wherein inter alia, he had imposed penalty of Rs. 60,00,000/- on Shri John Miranda. In an appeal preferred by the appellant, the Kolkata Bench of the Tribunal vide order dated 06.05.2015 against their stay application had directed Shri John Miranda to deposit an amount of Rs.5 lakhs within eight weeks from the date of such order, and the same was also complied with by depositing the said amount with the Custom House, Kolkata vide challan No.M-88 dated 13.07.2015. Since no proposal was made by DRI in the said SCN dated 27.02.2012 for appropriation of the pre-deposit of Rs.6 lakhs paid by him as well as in the ord....
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....the appellant's reply letter dated 26.04.2019, and offering personal hearing on 23.07.2020, had rejected the refund application with the following findings: "22. On the basis of documents submitted by the claimant, I find that the Show Cause Notice dated 27.02.2012 was issued to M/s Surya Trading, Shri John Miranda and Shri Rakesh Maggo by DRI, Ahmedabad. The SCN was answerable to the Commissioner of Customs (Port), Kolkata for imports made under 17 Bills of Entry at Kolkata port and also was answerable to Commissioner of Customs (Import), New Custom House, Mumbai for imports made under 01 Bill of entry at Mumbai port. 23. I find that the said SCN was adjudicated by the Commissioner of Customs (Port), Kolkata, appointed as common adjudicating authority in the matter and demand of differential duty was confirmed to be paid/recovered from M/s Surya Trading, Shri Rakesh Maggo and Shri John Miranda, vide Order-in-Original dated 21.11.2013. Certain penalties u/s 112(a) of the CA, 1962 were also imposed on Shri Rakesh Maggo, Shri John Miranda & others. xxx xxx xxx xxx 25. I find that instant matter pertains to the refund claim of Rs.3,00,000/-, claimed....
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....and draft, but the claimant failed to produce any documentary evidence in support of his claim except a letter dated 31.07.2008 forwarding demand drafts of Rs.3.0 Lakh each in the name of M/s Surya Trading and M/s New Star Enterprise..... xxx xxx xxx xxx 36. I find that the deposit was said to be made by the claimant in the year 2008 and the SCN was issued in the year 2012 but the refund claim is submitted only in the year 2019 and this aspect of non-appropriation was never contested during above period before the investigating agency, adjudicating authority and appellate tribunal. The appeal in the instant matter is still pending before Hon'ble CESTAT and the claimant still have an opportunity to represent this non-appropriation of the amount deposited during the investigation, but instead of contesting this non-appropriation before proper investigating/adjudicating/appellate authority, the claimant came up with a refund application before me, merely on the grounds that since the amount was deposited in the treasury of this customs house by the DRI, Mumbai, hence the refund application made before me. xxx xxx xxx xxx 43. In view of the above dis....
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.... submitted by the Appellant. I am of the view that the copy of Challan is an essential document in the cases where the amount is paid through manual challan as it is a vital proof which shows that who has paid the amount under which obligation and the amount has actually reached the Customs Account maintained with RBI. Challan should be submitted before the AC/Refund for its defacement also. 6.1 I find that for non-submission of the Challan copy, it is submitted by the Appellant that the Challan was not given to him by the DRI therefore he should not be held responsible for non-submission. I find that no evidence is placed on record by the Appellant to show that they had asked for the Challan copy from DRI at any point of time to claim refund against it. In my opinion, Original Authority is not obligated to obtain the copy of Challan from DRI or Cash Department to verify that the amount which has been claimed as refund has actually been paid by the claimant only and it has reached Customs Account. Still the efforts were made by the Original Authority to find out the challan on the basis of number and dated provided by the Appellant, but no challan was found in the name of ....
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....rectly rejected the refund claim filed by the Appellant for absence of cause of action for refund vide impugned order for the reasons mentioned therein. Thus, I do not find any infirmity in the impugned order and it merits no interference." 6. On reading of the above paragraphs of the impugned order, it transpires that the learned Commissioner of Customs (Appeals) had mainly rejected the refund claim of the appellant on the grounds that the challan evidencing payment of the amount of Rs. 3,00,000/- by the appellant was not available, no proof as to whether such amount was actually paid into the Government account was available and that there was no order or decision consequent upon which grant of refund under Section 27 ibid is allowable. 7. It is an undisputed fact on record that an amount of Rs.6,00,000/- (i.e., two Demand Drafts of Rs.3,00,000/- each) on account of M/s Surya Trading Co. and M/s New Star Enterprises was paid vide Demand Drafts No. 98597 and 98598 both dated 30.07.2008, respectively, drawn by Centurion Bank of Punjab/now HDFC Bank to the credit of the account of Commissioner of Customs, and the same was handed over by Shri John Miranda, Proprietor of M/s Joj....
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.... in the impugned order on the basis of nonproduction of requisite challan and the doubt raised whether such amount was credited to the customs/government account, is contrary to the facts and denial of refund on such ground is not sustainable. Further, action of the original authority stating that "the refund authority is not supposed to do investigation for ascertaining the cause of refund and assessing their eligibility", "only the investigation agency may be made responsible for refund of any amount paid during investigation with them and no crystalized liability made against the notice by the investigation agency" and the first appellate authority stating that "the original authority is not obligated to obtain the copy of Challan from DRI or Cash department to verify that the amount which has been claimed as refund has actually been paid by the claimant", only shows the deplorable situation in which the payment of pre-deposit made in the customs formation is not verifiable by the authorities working within the department to ascertain the facts, and on the other hand, the request for copy of the challan sought by the appellant has also not been responded favorably. On the other ....
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....riginal No. Kol/Cus/Port/29/2013 dated 21.11.2013, the appellant had filed an appeal before the Kolkata Bench of the Tribunal. On perusal of the database of CESTAT available for public view in the official website of CESTAT, it transpires that in the appeals filed against such order of the Commissioner in Customs Appeal No. 75242, 75243 and 75244 all of 2014, the Co-ordinate Division Bench of the Tribunal vide Final Order No. 76170-76174/2023 dated 26.07.2023, have held that demand of customs duty from the appellant Shri John Mirando and Shri Rakesh Maggo cannot be sustained. However, the penalty imposed on them was sustained. The relevant paragraphs of the said order are extracted and given below: "7. On going through the facts on these cases and the arguments advanced before us, we hold that the duty cannot be demanded from the appellants as it is the fact on record that the appellants, namely, Shri Rakesh Magoo & Shri John Miranda are not the real importers. In fact, the Bills of Entry has been filed in the name of Surya Trading Company & Creative Enterprises and these Bills of Entry were assessed and the goods were cleared to those importers. 7.1 In that circu....
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....ons. 3.2 Since the amount paid during investigation/audit takes the colour of deposit under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 only when the appeal is filed, the date of filing of appeal shall be deemed to be the date of deposit made in terms of the said sections. 7. Procedure for refund: 7.1 A simple letter from the person who has made such deposit, requesting for return of the said amount, along with a self attested Xerox copy of the order in appeal or the CESTAT order consequent to which the deposit becomes returnable and attested Xerox copy of the document evidencing payment of such deposit, addressed to Jurisdictional Assistant/Deputy Commissioner of Central Excise and Service Tax or the Assistant/Deputy Commissioner of Customs, as the case may be, would suffice for refund of the amount deposited along with interest at the rate specified. 7.2 Record of deposits made under Section 35F of the Central Excise Act, 1944 or section 129E of the Customs Act, 1962 should be maintained by the Commissionerate so as to facilitate seamless verification of the deposits at the time of processing the refund ....
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....ach for an amount of Rs.3 lakhs towards differential duty, interest etc arising out of undervalued /misdeclared import of various electronic goods through Mumbai port - reg. I, Shri John Miranda, sole proprietor of M/s.Jojojem International (IEC NO.0304015059) having office at 5B, Gr.floor and 9B, 2nd floor, Vithal Niwas, Jacob Circle, Mumbai-11 having tel.no.23008920 and Telefax - 23016548, residence at 404, B Wing, Gasper Enclave, Saint Johns Road, Bandra(West), Mumbai-400 050 and Res.Tel No.022- 26552518 and 022-66780311, hereby enclosed (i) D.D.No. 098597 for an amount of Rs.3 lakhs on a/c of M/s. Surya Trading Co. (IEC No. 0505003902) and (ii) another D.D.No.098598 for an amount of Rs.3 lakhs on a/c of M/s New Star Enterprises (IEC No. 0507051688) both dated 3107.2008 for total amount of Rs.6 lakhs (Rupees Six lakhs only) as part of payment towards liability towards differential duty, interest etc arising out of undervalued /misdeclared import of various type of Electronic goods through Mumbai port in the name of firm M/s. Surya Trading Co. (IEC No. 0505003902) and M/s New Star Enterprises (IEC No. 0507051688), on which I have operated. I request that the same may please....