TMI Blog2011 (4) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... t being amount deposited by him towards the very same duty which has been again collected by the revenue authorities from the importers, cannot be retained by the revenue, as there is no show cause notice issued to the appellant holding him as an importer and that he is liable to pay said duty. In the absence of any such show cause notice to the appellant holding him as an importer, holding back of the amount collected from him either under force or paid voluntarily, cannot be considered as an amount which need to be appropriated against the proposed penalties. - Decided in favour of the assessee - C/1884/2010 - 315/2011 - Dated:- 25-4-2011 - SHRI M. V. RAVINDRAN, SHRI P. KARTHIKEYAN, JJ. Shri G. Shivadass, Advocate for appellant. Shri Harish Kumar, SDR for the revenue. Per Shri M. V. Ravindran This appeal is directed against Order-in-Appeal No.115/2010 dated 20.5.2010. The relevant fact that arise for consideration are the appellant is a subsidiary company of SAP AG, Germany, the proprietary owner of SAP ERP software and other related software. SAP AG enters into a Software Distribution Agreement with various SAP entities around the world for sub-lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the appellant which has been dismissed by both the lower authorities as premature is incorrect. It is his submission that the appellant had in fact paid the amount which is not payable by them. It is his submission that it is undisputed that the appellants are not the importers but the importers are appellant s purchasers of ERP software. It is his submission that the amount of Rs.5.22 crores was paid by the appellant in order to safeguard their business interest by requesting the investigating authority not to investigate the matter with their purchasers. It is his submission that the investigating authorities has done exactly the same i.e., they collected an amount of Rs.5.22 crores from them and also investigated the customers of the appellant and have also taken pre-deposit of the amounts of duty payable by the appellant s customers as importers. He would draw our attention to two samples show cause notices dated 26.8.2009 issued to M/s. Reliance Communications Ltd. and show cause notice dated 31.8.2009 issued to M/s. Raymond Ltd. He would draw our attention to the various paragraphs in the show cause notices wherein it is indicated that the revenue authorities have coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in imports made in the name of their clients which indicates duplicate nature of mis-declaration. It is his submission that anticipating a legal litigation, imposition of penalty and possibility of launch of prosecution against them, appellant proposed to deposit additional amount of Rs.5.21 crores on behalf of their individual customers (177 in number), without going into the merits of the case, indicating that they are given relief under Sub Section 2B of Section 28 of the Customs Act, 1962. It is his submission that such relief cannot be given to the appellant as there was willful mis-statement and suppression of facts. It is also his submission that their appeared no bonafide ground which would have been granted to the appellant or their clients from declaring true nature of transaction before Customs authorities and claim any exemption or relief on merits. It is his submission that in view of the above, the appellant did not appear to be eligible for any relief. He would draw our attention to the various letters written by the appellant while making a deposit and submitted that all these payments were made voluntarily and there was no force. He would draw our attention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stayed by the Hon ble Supreme Court on a SLP filed by the revenue as reported at 2009 (238) ELT A85. 4. We have considered the submissions made at length by both sides and perused the records. It is undisputed that an amount of Rs.5,21,98,021/- was paid by the appellant herein vide TR6 challans dated 15.11.2008 in State Bank of India. The said challan is annexed at page 29 of the appeal memorandum and in the Column of full particulars of the remittances, appellant has mentioned as under : payment under protest of countervailing duty of customs relating to the dispatches of cds/dvds made by SAP AG to the customers of SAP India Pvt. Ltd. on behalf of the alleged importers (DRI F. No.S/IV/31/2007) . The said amount has been credited to the Customs account is evident from the letter dated 22.7.2009 issued by the State Bank of India to the appellant. 4.1 It is undisputed that the CDs which were imported and which were allegedly to have been undervalued for the discharge of Customs duty were imported by the customers of the appellants. The declaration in the Bills of Entry and invoices were filed by the customers of the appellant, which indicate that the appellant was not import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have secured the interest of the revenue by directing those two customers to deposit the differential duty of amount on allegation of mis-declaration of value by them. The said show cause notice also admits that the appellant has deposited an amount of Rs.5,21,98,021/-. It can be seen from the above reproduced portion of the show cause notices issued to the appellant, the same seeks to appropriate the said amount towards penalty proposed under Section 112 (a) of the Customs Act, 1962 on the current appellant. It would indicate that there is no crystallization of any amount i.e., due from the appellant either in the form of duty or in penalty. In our considered view, the amounts paid by the appellant cannot be held in abeyance for appropriation towards any penalty which has been proposed but not yet imposed on the appellant. We find that the judgment of Hon ble High Court of Punjab and Haryana in the case of Raghu Exports (supra) is directly on the point. We may reproduce the said portion. 5.For the reasons mentioned above, the respondent No. 2 is directed to refund the amount of Rs. 1 crore and to return the cheques of Rs. 1.5 crores admittedly deposited by the petitioner alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 (Tri. Del.)] (iii) Jayant Glass Inds. (P) Ltd. v. CCE, Kolkata [2003 (155) E.L.T. 188 (Tri. LB)] (iv) Raghu Exports v. UOI [2008 (229) E.L.T. 655 (P H)] (v) Titan Engg. Co. Pvt. Ltd. v. CCE, Bolpur [2005 (189) E.L.T. 416 (Cal.)] (vi) Nelco Limited v. UOI [2002 (144) E.L.T. 56 (Bom.)] 3.On the other hand, ld. DR submits that the amount was deposited voluntarily by the appellants and therefore, it need not be refunded. 4.We have considered the submissions by both the sides. Both the Original Adjudicating Authority as well as the appellate authority have not specifically denied that blank cheques were recovered, filled in and paid into the credit of Government. In fact, there is no Order-in-Original by the Asst. Commissioner but only a letter dt. 13-2-2008 intimating the appellants that the refund claim is pre-mature and therefore, claim papers are returned. Commissioner (Appeals) has taken the same stand that since the show cause notice has not been issued and time limit has also not expired, the amount is not refundable. We find that all the decisions cited by the appellants are applicable to the present case and on the other hand no judicial precedents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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