TMI Blog2015 (11) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... nded/recovered from 2001. Indeed, even if it is eventually held through proper process of Show Cause/adjudication that the interest was leviable from the year 2001, the refund of interest paid in excess during the period 30.09.2003 to 29.09.2005 will have to be sanctioned and only then it can be adjusted towards the interest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed by Govt. was 13% p.a. effective from 12.09.2003 as per Notification No.76/2003-Cus(NT). 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, ICD vide Order-in-Original No.AKR/CC/ICD/TKD/31 32/2003, dated 30.06.2003 and the goods were released after the appellants deposited the custom duty, rede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-assessment of their Bills of Entry and the interest on delayed payment of duty ought to have been paid under Section 28AB of the Act ibid. Section 28AB lays down that the liability to pay interest is from the first day of the month in which the duty ought to have been paid under this Act. There was a short levy originally due to mis-declaration by the importer and hence the duty ought to have been pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. The primary adjudicating authority acknowledges that the Department directed the appellants to pay interest @ 15% p.a. from 30.09.2003 to 29.09.2005 under Section 28AA of the Act (although it is seen in para 2.3 of the primary adjudication order quoted above, it is stated that the interest was payable under Section 28AB ibid). In this regard it is also not disputed that the 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 paid interest in excess of what was required to be paid. 6. We find that the primary adjudicating authority as well as the first appellate authority instead of confining themselves to the issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 the applicable rate of interest during the period was 13% p.a. as mentioned in para 5 above. Thus the amount of interest paid (@ 15% p.a.) was evidently more than the interest payable (@ 13% p.a.) and consequently the appellants were clearly entitled to (sought) refund of excess interest so paid. 7. In the light of the aforesaid analysis, we set aside the impugned order and allow the impugned refunds. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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