TMI Blog2006 (4) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... mount ought to have been paid within three months from 6-10-2003. Since it was not paid, interest at 12% p. a. with effect from the expiry of three months from 6-10-2003 has to be paid. This is the order of the Commissioner (A) and we have no reason to interfere with it. As regards, the amount in the other appeal before the Commissioner (A), the refund claim was originally filed even on 9-11-2001, therefore the provisions of Section 27A of the Customs Act are attracted. A careful reading of 27A reveals that the Respondent in the second refund claim are entitled for payment of interest from the date of expiry of three months from the date of refund claim as contended in the Cross Objection by the Respondent. Hence, we are inclined to allow the Cross Objection in respect of this refund claim. Thus, Revenue s appeals are dismissed and Respondent s Cross Objection is allowed. - HON'BLE DR. S.L. PEERAN, T.K. JAYARAMAN, JJ. For the Appellant. : Shri K.S. Reddy, JDR, For the Respondent : Shri S.K. Choudhury, Consultant JUDGMENT T.K. Jayaraman, Member Final Order Nos. 129 and 130/2007 1. Revenue has filed this appeal against Order-in-Appeal No. 71/2005-Cus (B), dated 30-6-2005 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has not made any distinction between duty and deposit, since the decision being the latest and from the highest judicial forum, the same shall be prevailed over any other decision. In the present case, the Respondents refused to accept the obligation on their part to prove that the incidence of duty has not been passed on to others and consistently held the view that the bar of unjust enrichment would not be applicable in their case. The Commissioner while ordering refund to the Respondents has also ordered for payment of interest from the expiry of three months from the date of settlement/adjudication. The refund application was submitted to the Department on 14-1-2004. It is on record that all possible efforts were made by the Department to obtain evidence from the Respondents to satisfy the test of unjust enrichment. A Show Cause Notice was also issued by the Department as an final effort to elicit the required information. As the Respondents stubbornly resisted in providing any evidence in respect of unjust enrichment, an order was passed sanctioning the refund amount but crediting to the Consumer Welfare Fund. Hence, the Commissioner s view that there was delay in refunding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards differential duty likely to arise after adjudication is not correct, as can be seen from the TR 6 Challans showing the said amounts Towards customs duty, interest and other adjudication levies . (iii) The cases cited in Ground (b) of the Grounds of Appeal of Revenue are not relevant. (iv) Therefore, a legal presumption of passing on the full incidence of duty under Section 28D is not invokable in the Respondent s case. Hence, the burden to prove that the incidence of these amounts have been passed on to any other person is on the department. In any case, Section 28D relates to only duty and not interest or adjudication levies. (v) The ratio of the Supreme Court judgment in the case of Sahakari Khand Udyog Mandal Ltd. - 2005 (181) E.L.T. 328 (S.C.) relied on by Revenue is clearly not applicable, as in that case it was an admitted position that the petitioner had recovered the duty amount. (vi) The SC in the case of UOI v. Suvidhe Ltd. - 1997 (94) E.L.T. A159 (S.C.) has upheld the judgment of the Bombay High Court to the effect that the deposit made under Section 35F of Central Excise Act, the bar of unjust enrichment is not applicable, if such amount is found refundable. It do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Department on 9-11-2001. Some queries were raised by the Dy. Commissioner (Refunds) but no action was taken. In the mean time, DRI issued Show Cause Notice alleging shortfall in meeting export obligation in respect of five advance licenses including 7001272 and 7002576. The Commissioner of Customs vide his Order-in-Original No. 11/2004, dated 27-2-2004 held that the appellant had fulfilled their export obligation under license 07001272 and ordered refund of an amount of Rs. 45,77,562/-. When the Respondents requested the Asst. Commissioner to implement the Commissioner s order, the AC (Refund) rejected the claim on the ground of unjust enrichment. The Respondent filed appeal No. 45/05 which was allowed by the Commissioner of Customs (A) in the impugned order dated 30-6-2005 but with interest only on expiry of three months from the Commissioner s order dated 27-2-2004 in terms of Supreme Court judgment in ITC Ltd. case reported in 2005 (179) E.L.T. 15 (S.C.) read with Board s Circular No. 802/35/2004-CX., dated 8-12-2004. The Respondent s in their Cross Objection claimed interest on expiry of three months from the date of making such claim. They relied on the following case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Board s Circular dated 8-12-2004, the amounts due to the party should be refunded to them within a period of three months of the disposal of the appeals in the assessee s favour. In the present case, the refund amount of Rs. 52,58,312/- arose consequent to Commissioner of Customs order dated 6-10-2003. Therefore, the refund in respect of this amount ought to have been paid within three months from 6-10-2003. Since it was not paid, interest at 12% p. a. with effect from the expiry of three months from 6-10-2003 has to be paid. This is the order of the Commissioner (A) and we have no reason to interfere with it. As regards, the amount of Rs. 45,77,562/- in the other appeal before the Commissioner (A), the refund claim was originally filed even on 9-11-2001, therefore the provisions of Section 27A of the Customs Act are attracted. Section 27A - Interest on delayed refunds - If any duty ordered to be refunded under sub-section (2) of Section 27 to an applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, (not below five percent) and not exceeding thirty p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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