2022-TIOL-1162-HC-DEL-CUS
Candex Filament Pvt Ltd Vs Pr.CC
Cus - Since a detention certificate was issued, the provisional release of goods was not sought, although bank guarantees were furnished - A show-cause notice dated 11.05.2018 was issued to the petitioner and subsequently, an adjudication order was passed on 05.12.2018 - Petitioner preferred an appeal before the CESTAT which was accompanied by a pre-deposit amounting to Rs.1,87,500/-, i.e., a sum equal to 7.5% of the total penalty imposed on the petitioner - Appeal before the Tribunal is pending adjudication - In the meantime, since the validity of the aforementioned bank guarantees was not extended, they were encashed by the department and a demand draft was received on 29.12.2020 - Refund sought by the petitioner, with regard to the monies obtained by the respondents/revenue, against the encashment of three bank guarantees furnished by the petitioner, has been declined vide order dated 16.07.2021 and which order is the subject matter of this petition.
Held: Counsel for Revenue accepts the position that the recovery of dues cannot be made, while the appeal of the petitioner is pending consideration before the Tribunal - Therefore, respondents/revenue will have to remit the amount to the petitioner, as reflected in the aforementioned bank guarantees - Respondents/revenue, concededly, can recover the demand raised, only if the petitioner were to ultimately fail in the appeal or in any other proceedings taken out thereafter, before a superior forum - Impugned order dated 16.07.2021 is quashed and Petition is disposed of by directing Revenue to remit the amount within three weeks: High Court [para 10 to 13]
- Petition disposed of: DELHI HIGH COURT
2022-TIOL-1161-HC-KERALA-CUS
CC Vs Indian Oil Corporation Ltd
Cus - On 14.10.2004, the appellant Revenue issued notice to respondent assessee alleging that the respondent collected excess customs duty which was later on deposited into the oil pool account - According to the Department, the alleged excess amounts collected by the respondents should have been credited to the consumer welfare fund under the head of customs - Commissioner confirmed the liability and raised the demand of Rs.1,83,70,114/- under Section 28B of the Customs Act, however, in appeal, the CESTAT dropped the demand, hence the present appeal - Counsel for Revenue argues that there is no finding on the statutory obligation of respondent to deposit the excess customs duty collected to the credit of department and, therefore, the order under appeal is liable to be set aside and at least for fair consideration remitted to CESTAT for disposal afresh. Held: The Tribunal, by referring to earlier orders, recorded a finding that in view of Administered Price Mechanism implemented for petroleum products at that point of time, no exception to the deposit could be taken - There is no material for taking a different view of the observation of Tribunal that collection of excess duty may not be exactly fit into the scheme of Section 28B of Customs Act, 1962 or Section 11D of the Central Excise Act, 1944 but it has to be accepted that the purpose of legislation of these sections is fulfilled by this provision in the Administered Price Mechanism (APM) Scheme - Views expressed in the instant judgment shall not be understood as deciding the scope and object of Section 28B of the Act and the questions arising under Section 28B of the Act are left open for consideration: High Court [para 8, 9, 10]
- Appeal dismissed: KERALA HIGH COURT
