TMI Blog2012 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to the levy. When payment is made pursuant to the orders of the assessing authority, details of the same would also be available in that file. When appeal is filed by the importer against the orders of the assessing authority the file will contain orders and details relating to the same also. Therefore, there is no difficulty for the assessing officers to decide the claim for refund based on those documents, when the appeal is allowed in full or in part. The filing of this review petition itself is an abuse of the process of the court. - Review petition dismissed with cost of Rs. 25000/- Interest and cost to be recovered from the petitioner in the review petition and all officers responsible. - W.P(C) No. 4814 of 2012 - - - Dated:- 24-7-2012 - MR.JUSTICE S.SIRI JAGAN, J. For Appellant: SRI.SAIBY JOSE KIDANGOOR. For respondent: SRI.P.A.AUGUSTINE. O R D E R This Review Petition is filed by the Commissioner of Customs, Kochi, who is the respondent in W.P.(C) No. 4814 of 2002 seeking review of my judgment dated 28-3-2012 in that writ petition, which reads as follows: "This writ petition is filed by the petitioner seeking refund of excess fine and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eks to review the judgment on the following mainly among other: GROUNDS A. This Honourable Court had delivered the judgment dated 28.03.2012 directing the respondent, Commissioner of Customs, Customs House, Kochi to refund the excess fine and penalty consequent to the appellate order to the petitioner within ten days from the date of judgment. B. It is submitted that the submission made on behalf of the standing counsel for the Central Excise and Customs that the excess fine and penalty consequent to the appellate order would be refunded on production of original documents such as importer's copy of bill of entry and duty paid TR 6 challan which are mandatory documents do not find a place in the judgment. It is also submitted that the submissions made on behalf of the standing counsel could not be properly placed before this Hon'ble Court even though the same is clearly stated in the counter affidavit. It is respectfully submitted that if the above judgment is not reviewed the review petitioner will be put to irreparable injury and hardship. For these and other grounds that may be urged during the course of argument it is most humbly prayed that this Honourable Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund is made without the documents, there is chance of a duplicate claim for refund of the same amount. The third is that since such refunds are not covered by Section 27 of the Customs Act, the same can be made at any time and when refund is claimed after several years, for verifying previous refund, if any, original documents are mandatory. According to the petitioner in the Review Petition, in the counter affidavit filed in the writ petition, these facts have been elaborately dealt with. 4. A counter affidavit has been filed in this review petition by the petitioner in the writ petition. They would submit that in view of Exts. P3 and P7 circulars issued by the Government of India, for effecting refund as per the appellate order, even a refund application is not necessary for claiming refund of pre-deposit made during pendency of appeal, but only a simple letter from the person who has made such deposit, requesting return of the amount of such deposit along with an attested copy of the TR6 chalan evidencing payment of the amount of such deposit addressed to the concerned officer of customs will suffice for the purpose. In Ext. P7, this has been reiterated and a time limit of 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prised by the contention of the petitioner in the review petition that Exts. P3 and P7 are not applicable to payment of fine and penalty. Pre-deposit pending appeal is covered by Section 129E, which reads as follows: "129E. Deposit, pending appeal, of duty and interest, demanded or penalty levied:- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal deposit with the proper officer duty and interest demanded or penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue: Provided further that where an application is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esse, even for a moment, depriving the assesse of the use of his money unreasonably. Refunds are made by crossed cheques in the name of the importer. Cheques are sent by registered post in the address of the assesse available in the file. As such there is no scope for any unauthorised person claiming and obtaining any refund or any duplication of the refund, unless the authority making the refund is negligent in his duties. Situation is the same even if the refund is after several years, if the file is still available. Therefore, I am of opinion that these contentions are raised only to find out some reason or other to deny the petitioner, the legitimate refund due to the petitioner in the writ petition. 10. In this case as evidenced by Ext. P4, the petitioner has in fact filed an application for refund and produced copies of the chalan, copy of bill of entry and a working sheet, in addition to the appellate order, which, according to me, are more than sufficient for the purpose of making the refund as per the appellate order. The counsel for the petitioner in the writ petition submits that his copy of the original chalan is missing from his files. Even assuming that the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. In fact the writ petition was liable to be allowed with interest and costs, which opinion I had made abundantly clear to the petitioner in the review petition, at the time of initial hearing of the writ petition. That opinion I had expressed in other similar writ petitions also. In fact on the very day next to the date when the writ petition was disposed of, I had disposed of two other writ petitions on similar undertaking. If, as a matter of fact, at the time of making the undertaking to refund the amount, the same was qualified by the necessity to produce documents as stated in the review petition, I would have considered the writ petition on merits, in which case I would certainly have allowed the writ petition with at least interest, if not costs also. It is only because the petitioner in the review petition voluntarily undertook to make the refund himself, without an order from the court, I let it go at that. The petitioner in the review petition has tried to take advantage of that lenience shown by the court, which now I think was unmerited, to delay further the payment of the refund due to the petitioner in the writ petition, on most untenable and cantankerous contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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