TMI Blog2021 (6) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... d undue hardship or who were prepared to perjure themselves with claims that may not have withstood the scrutiny of the Tribunal. The attempt to persuade us that this absurdity has been legislatively intended does not evoke resonance from us. It would not be wrong to posit that predeposit is contingent not upon orders of the Tribunal but on carrying disputes to the Tribunal. The position adopted in the impugned order that the original authority was, in discarding the claim of the appellant that the payment of differential duty was pre-deposit, is not incorrect cannot be affirmed as legal and proper - the competent authorities are directed to ensure compliance with circular no. 984/8/2014-CX dated 16th September 2014 of Central Board of Excise Customs for disposal of the refund without fail and without delay. Appeal allowed - decided in favor of appellant. - C/1061/2006 - A/ 86423/2021 - Dated:- 18-6-2021 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri D B Shroff, Senior Advocate with Shri Mihir Mehta, Advocate and Shri Mohit Rawal, Advocate for the appellant Ms Trupti Chavan, Assistant Commissioner (AR) for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere. 4. Learned Senior Counsel, Mr DB Shroff, submits that the sanctioning authority, as well as the first appellate authority, had placed an erroneous construction on the payment effected by the appellant. According to him, the order of Collector of Customs charging them with differential duty and confiscation of goods would have entailed setback of their business plan had they opted to await the culmination of the appellate process which may well have had to travel to the highest court and a conscious decision was taken to comply with the order even as they pursued appellate remedies. He submits that the withholding of consequential relief, and to persist in indirectly saddling them with the burden after judicial intervention had frustrated the attempt under aegis of the law, was sought to be justified by obfuscating the legal reality with a distorted perspective of the facts. Elaborating on this vein, Mr Shroff pointed out that, had they opted to await filing of appeal and disposal of attendant application for waiver of pre-deposit, the facts may well have remained unchanged except that the goods would have been made available to them after a further lapse of time. The discli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mandal Ltd v. Commissioner of Central Excise Customs [2005 (181) ELT 328 (SC)] which placed emphasis on the non-refundability being based on equity which was liable to be invoked even without statutory sanction. The decision of the Hon ble High Court of Gujarat in Ruchi Soya Industries Ltd v. Union of India [2016 (336) ELT 423 (Guj)] on similar lines was also cited. 8. It was also contended by her that the certificate of the Chartered Accountant was not acceptable as, during the proceedings before the original authority, the appellant herein had pleaded their inability to submit any supporting evidence and that the plea before the first appellate authority appeared to be mere afterthought. Referring to the decision of the Hon ble Supreme Court in Commissioner of Central Excise, Chennai-III v. Grasim Industries [2015 (318) ELT 594 (SC)], it was argued that duty paid on capital goods was, to no lesser extent, subject to the test of unjust enrichment in deciding upon destination of refund. 9. The submissions and supporting citations, purporting to defend the stand of the lower authorities, pertain to the several situations in which the test of unjust enrichment had been ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as the Tribunal and only in the peripheral vision of the constitutional courts with the conceptual simplicity, moral soundness and ethical desirability of the doctrine tugging at the heartstrings. It was after the statutory recognition accorded by amendment of section 27 of Customs Act, 1962, with effect from 20th September 1991 by the Central Excise and Customs Laws (Amendment) Act, 1991, that the authoritative exposition of the doctrine by the Hon ble Supreme Court in re Mafatlal Industries Ltd as interdict on access to the refund of taxes collected without authority of law offered the wider understanding, and acceptance, that it now has. It would be safe to hazard a guess that the appellant herein may well have secured their claim with a nominal exertion for waiver, and, thus, ousted the possibility of denial put forth now by the lower authorities, had they been prescient of the alteration that was to occur four years thence even as their appeal lay undisposed; that obeisance to superfluity would have been but a small price to pay for the elapse of two more decades before their claim was taken up for judicial determination. 11. That the appellant had not, at any stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lower authorities is to be accepted, remittance of duty would be pre-deposit only for those who could satisfy the Tribunal that such payment caused undue hardship or who were prepared to perjure themselves with claims that may not have withstood the scrutiny of the Tribunal. The attempt to persuade us that this absurdity has been legislatively intended does not evoke resonance from us. It would not be wrong to posit that predeposit is contingent not upon orders of the Tribunal but on carrying disputes to the Tribunal. 13. It is consistent with this provision that, while an aggrieved person may have the right impugn the order causing grievance, the sanctity of the order remains unimpaired unless stayed by the appellate authority. The purpose of the proviso in section 129E of Customs Act, 1962 is to forestall initiation of recovery proceedings during the pendency of appeal and for pre-deposit to be restricted as designating only those that are in compliance with such conditions, as may be prescribed for grant of stay, would that inconsistent with the intent. This has been articulated by a Larger Bench of the Tribunal in Haldiram India Pvt Ltd v. Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 for 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 129 E, he is required to file an application seeking dispensation of such deposit, in which case he is required to make the pre-deposit in terms of the order that may be passed by the Commissioner (Appeals) or the Appellate Tribunal. Thus, the contention that it is only the payment made pursuant to any order of any appellate authority or judicial forum under Section 129 E or section 131 of the Act would fall within the ambit of predeposit under the said provision is fallacious and contrary to the provisions of the section itself and as such d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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