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2015 (11) TMI 1083 - CESTAT NEW DELHI

2015 (11) TMI 1083 - CESTAT NEW DELHI - 2015 (329) E.L.T. 455 (Tri. - Del.) - Refund claim of interest paid in excess than prescribed rate - whether the appellants paid interest at a rate higher than the rate fixed by the Central Government for the period for which the interest was paid as per the directions of the Department - Held that:- Rate of interest under Section 28AB of the Act was fixed at 13% p.a. vide Notification No.76/2003-CUS(NT), dated 12.09.2003 and thus evidently the appellants .....

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t liability arising as a result of quasi-judicial determination that the interest was chargeable/ recoverable from the year 2001.

Observation of the adjudicating authority to the effect that because the interest is recoverable from the year 2001, the Department charged interest from the appellant as per law is devoid of any basis, logic or rationale. The Department demanded interest for the period 30.09.2003 upto 29.09.2005 at the rate of 15% p.a. (which the appellants paid), while t .....

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echnical) For the Petitioner : Shri R. Santhanam, Advocate For the Respondent : Shri Amresh Jain, DR ORDER Per Mr. R.K. Singh : Appeal has been filed against Order-in-Appeal No.CC(A)Cus/302/2008, dated 05.09.2008, which upheld the Order-in-Original dated 07.12.2007 in terms of which three refund claims of the appellants were rejected. The brief facts of the case are that the appellants applied for refund of ₹ 11,05,783/- on 25.06.2007, ₹ 10,16,590/- on 04.07.2007 and ₹ 41,282/- .....

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On an intelligence, Revenue seized 40 containers of the appellants for mis-declaration and concealment at the port of importation (ICD). Revenue suspected that the appellants had earlier also imported goods and cleared the same by way of mis-declaration and concealment and stored the same in the appellants godown. So the goods found at the appellants godown were also seized. Revenue issued a common Show Cause Notice to the appellants. The case was adjudicated by the Commissioner of Customs, IC .....

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ate of 15% p.a. from 30.09.2003 upto 29.09.2005 under Section 28AA of Customs Act, 1962 (after three months from issuing of Order-in-Original dated 30.06.2003 passed by the Commissioner of Customs) and after final assessment of their Bills of Entry. The primary adjudicating authority also acknowledges that vide Ministry of Finance Notification No.76/2003-Cus (NT), dated 12.09.2003 the rate of interest was fixed at the rate of 13% p.a. Having thus noted, the adjudicating authority records the fol .....

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fter receiving an intelligence department detained/seized the entire 40 nos. of containers and also the goods cleared and was stored in the party s godown for mis-declaration. The case was adjudication by the Commissioner of Customs, ICD on 30.6.2003 imposing the redemption fine and penalty and the department also directed them to submit the Bills of Entry for the assessment. This is the case were the duty liability as applicable to them during 2001 and not as applicable at the time of re-assess .....

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as per law. Thus, they are not entitled for refund of interest of ₹ 11,05,783/-, ₹ 10,16,590/- and ₹ 41,282/- (Total ₹ 21,57,655/-) in three refund applications. The Commissioner (Appeals) in the impugned order pretty much echoed the primary adjudicating authority s view while upholding the primary adjudicating order. 3. Ld. counsel for the appellants contented that for the period for which interest was demanded, the rate of interest was clearly fixed at 13% p.a. by the C .....

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just enrichment are not attracted in the present case. 5. We have considered the contentions of both sides. At the very outset it has to be delineated that the only issue involved in the present case is whether the appellants paid interest at a rate higher than the rate fixed by the Central Government for the period for which the interest was paid as per the directions of the Department. The primary adjudicating authority acknowledges that the Department directed the appellants to pay interest @ .....

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he primary adjudicating authority as well as the first appellate authority instead of confining themselves to the issue involved in the present case have gone ahead to record a finding that the interest in this case was leviable from 2001. In this regard it is pertinent to mention that from which date the interest was leviable was not the issue in these refund proceedings. There had been no Show Cause Notice requiring the appellants to show cause as to why the interest should not be demanded/rec .....

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