TMI Blog2021 (7) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner filed the appeal before the CESTAT and the said appeal is pending, and the petitioner made a pre-deposit, as required under the statute. The Board also issued a Circular dated 16.09.2014 that if an opinion is formed that the EDD was erroneously refunded as the matter is pending before the CESTAT, the demand cannot be made till the issues are settled by passing a final order - In the present case, admittedly, the CESTAT Appeal is pending. This being the factum, this Court is of the opinion that the impugned order issued on 08.01.2013 ought not to have issued by the respondents and they should have waited till the disposal of the CESTAT Appeal filed by the petitioner, which is pending. The impugned demand notice issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborately adjudicated by the Commissioner of Customs (Appeals) and an order was passed on 30.06.2004 and the Commissioner of Customs (Appeals) made a finding, which reads as under: I also observe that Adjudicating Authority have not fully finalised this issue as the importation of goods during the period of agreement has not ended and the data of import (post signing of the agreement) is not available. Thus, it will be fair that I do not interfere with the order of Adjudicating Authority at this stage as far as the addition of Technical know-how fee is concerned. Thus, I modify the Order-in-Original to the limited extent that portion related to enhancement of value of 352 components is set aside. Remaining portion of the Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order passed by the CESTAT. The communication under the RTI Act was issued on 15.12.2011. Thus, it is not in dispute that the CESTAT order became final. Pursuant to the said order, the EDD refund amount was also sanctioned in respect of the petitioner-Company and it was paid and the petitioner also acknowledged the same vide letter dated 4th December, 2012. While so, the 4th respondent issued the impugned notice on 08.01.2013, stating that the refund of EDD made, became erroneous, and therefore, the same needs to be retained with the Department as Deposit, till finalization of the issue. 5.The learned counsel for the petitioner further contended that with reference to the period from 1997-2002, the refund was ordered and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of 7.5% or 10% deposited in terms of Section 35F of Central Excise Act, 1944 or Section 129E of Customs Act, 1962, shall be taken during the pendency of appeal where the party/assessee shows to the jurisdictional authorities: (i) proof of payment of stipulated amount as pre-deposit of 7.5%/10%, subject to a limit of ₹ 10 Crores, as the case may be; and (ii) the copy of appeal memo filed with the appellate authority. 4.3 Recovery action, if any, can be initiated only after the disposal of the case by the Commissioner (Appeals)/Tribunal in favour of the Department. For example, if the Tribunal decides a case in favour of the Department, recovery action for the amount over and above the amount deposited under the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totally and willfully suppressed by them. Admittedly, in this case, the supplier of automobile car parts is none other than M/s Hyundai Motors Limited, Korea and it is imported by the petitioner, namely M/s Hyundai Motors India Limited. Therefore, there is a strong relationship between importer and supplier and it does influence the transaction value, which has been under declared by the petitioner earlier. It is only after production of the price list and after finding out that the goods have been undervalued to the tune of ₹ 266.7 crores that the DRI has issued a show cause notice, which is the subject matter in W.P.No.26273 of 2011. Since the issue of relationship between the importer and the supplier remains unsettled in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondents and they should have waited till the disposal of the CESTAT Appeal filed by the petitioner, which is pending. 9.This being the factum established, the impugned demand notice issued by the 4th respondent in File No.S.Misc.57/2012-Refunds-Sea, dated 08.01.2013, is kept in abeyance till the disposal of the CESTAT Appeal filed by the petitioner in Appeal No.C/4204/2015. The respondents are at liberty to continue the proceedings after the disposal of the CESTAT Appeal, filed by the petitioner. Till such time, no coercive action shall be taken against the petitioner. 10.With these directions, the Writ Petition stands disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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