TMI Blog2018 (11) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... if demand is confirmed against the petitioner, for hearing of appeal upto the CESTAT, only 10% of the amount is to be deposited, whereas the proceedings in the present case have not been concluded yet - after retaining the amount of ₹ 6,00,000/-, balance amount deposited by the petitioner be refunded to him within a period of four weeks from the date of receipt of copy of the order. Petition disposed off. - CWP No. 4247 OF 2017 (O&M) - - - Dated:- 16-8-2018 - Mr Rajesh Bindal And Mr Harinder Singh Sidhu, JJ. For The Petitioner : Mr. Jagmohan Bansal, Advocate For The Respondents : Mr. R.K. Handa, Advocate ORDER Rajesh Bindal, J. CM No. 10370 of 2018 Miscellaneous application is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment to the importers by the officials of the DRI. Learned counsel for the petitioner further submitted that even if demand is confirmed against the petitioner in terms of show cause notice dated 24.04.2017 issued to him, for filing appeal, the petitioner will have to deposit only 10% of the duty. Hence, recovery of money under coercion at this stage is without authority of law and the amount needs to be refunded. On the other hand, counsel for the respondents submitted that the amount was paid by the petitioner voluntarily, finding that he had violated the law while importing the goods by paying the duty on transaction value instead of the maximum retail price. The duty was leviable at the higher rate. He further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to be returned the amount paid. In Century Knitters (India) Ltd. (supra) finding that certain amount was recovered by the revenue without any show cause notice or demand, while directing retaining of 20% of the amount, the balance amount of ₹ 8 crores was directed to be refunded. It was held that unless a demand is finalized and is existing which is liable to be discharged, the revenue cannot retain any amount unless there is a specific provision in the statute which authorizes such retention. Retention of any amount by the revenue in such a situation would be violative of Article 265 of the Constitution. The relevant observations are as under:- 11. After hearing learned counsel for the parties and perusin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it legally not entitled to as the same would be violative of Article 265 of the Constitution of India. Another fact which deserves to be noticed is that show cause notice was issued to the petitioner on 24.04.2017 and more than one year has already been elapsed but no order has been passed. Even if demand is confirmed against the petitioner, for hearing of appeal upto the CESTAT, only 10% of the amount is to be deposited, whereas the proceedings in the present case have not been concluded yet. Keeping in view the enunciation of law as noticed above, after retaining the amount of ₹ 6,00,000/-, balance amount deposited by the petitioner be refunded to him within a period of four weeks from the date of receipt of copy of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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