TMI Blog2012 (9) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriation of refund sanctioned to the Respondent in other cases which were under his control, to be the pre-deposit made by the Respondent under Section 129E of the Act? (b) Whether in the facts circumstances of the case, the CESTAT was correct in holding that the Respondent became eligible for refund of ₹ 4,71,447/- from 20-8-1996, counting three months from the CESTAT s earlier Order No. 1559/96-A dated 20-5-1996, when under the said Order, there was no clear direction to refund the amount recovered by appropriation of refund claims but directed the adjudicating authority to wait for the decision of the Hon ble High Court of Gujarat in the Writ Petition filed by the Respondent, before taking a final decision on the Light Displacement Tonnage (LDT) controversy? (c) Whether in the facts and circumstances of the case, the CESTAT was correct in holding that the Respondent is not required to file a proper refund claim under Section 27 of the Act and satisfy the tests of unjust enrichment? (d) Whether in the facts and circumstances of the case, the CESTAT was correct in holding the Appellant liable to pay interest on the appropriated amount @ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court decides the controversy regarding LDT, it should be followed and if on the other hand, the writ petition is disposed of without deciding the LDT controversy, the Customs authorities shall consider the contentions of the assessee in accordance with law. 4. By a letter dated 9th July, 1996, the assessee requested the Assistant Commissioner to refund the amount of ₹ 4,71,447/- adjusted against the demand as the impugned order had been set aside by the Tribunal on 20th May, 1996. The said letter was returned to the assessee as the Tribunal s order was subject to the outcome of the writ petition which was pending decision before the High Court. 5. By a letter dated 7th December, 2004, the assessee reiterated its request for refund and release of bank guarantee. On 26th June, 2006, the original adjudicating authority rejected such request. The matter reached the Tribunal which, by an order dated 20th February, 2008, remanded the issue of the refund claim to the original adjudicating authority with a direction to decide both the issues, namely, the issue of assessment of the ship as well as refund of the amount deposited by the assessee. By an order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and that the Tribunal had erred in holding that the same was in the nature of a pre-deposit. 8. As can be seen from the impugned order of the Tribunal, before the Tribunal on behalf of the Department, it was contended that the amount was not deposited because of any direction of the appellate authority and was adjusted against the refunds due to the party and as such, was in the nature of duty. The respondent was, therefore, required to file a refund claim under Section 27 of the Act. On behalf of the assessee, it had been contended that once the demand of duty was set aside, the amount adjusted out of the refund sanctioned against such demand was required to be returned suo motu. The Tribunal, after considering the submissions advanced on behalf of the respective parties, was of the view that the central issue involved in the present case was whether the amount of ₹ 4,71,447/- was to be treated as duty paid or pre-deposit. After referring to the provisions of Section 129E of the Act as well as the Board s Circular dated 2nd January, 2002, the Tribunal observed as follows : 10. When we consider the provisions of Section 129E of the Act it becomes c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son desirous of appealing against an order relating to any duty or interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under the Act, is required to deposit the duty and interest demanded or penalty levied with the proper officer. Under the section such amount has to be paid by such person on his own and does not require any order to be passed before making such deposit. Deposit of the said amount is a pre-condition for entertaining the appeal. What is important to note is that the amount to be deposited before the appeal can be entertained on merits is nothing else but the amount of duty and/or interest, or penalty demanded in consequence of an order-in-original. In principle the deposit is of duty or interest or penalty. The term pre-deposit is conveniently used to denote payment before entertaining the appeal. It is only a mode of payment prescribed by legislature with an intention to protect interest of Revenue. 7. However, if the person desirous of preferring appeal seeks waiver of the pre-deposit on the ground of undue hardship as contemplated under sub-section (2) of Section 129E, he is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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