TMI Blog2003 (7) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty in the sum of Rs. 29.40 lakh and Rs. 4.00 lakh on 16 consignments plus 1 consignment respectively, covered by the adjudication orders. 3.Being aggrieved by the above adjudication orders, the petitioners preferred two separate appeals before the Tribunal. The Tribunal, by a common speaking order dated 16th April, 2002 reduced the redemption fine to Rs. 25 lakh and Rs. 7 lakh and amount of penalty to Rs. 7.50 lakh and Rs. 2 lakh, respectively, with the result, petitioners became entitled to claim refund of a total amount amounting to Rs. 1.35 crore. 4.On 17th April 2002, petitioners addressed a letter to respondent No. 4 requesting him to refund the amount of fine and penalty consequent to the above order passed by toe Tribunal. Pursuant to the request made by the petitioners, refund order dated 17th July, 2002 came to be prepared and issued by the Assistant Commissioner of Customs, Appraising Group. The petitioners were asked to file an affidavit-cum-indemnity bond, which the petitioners executed on 8th May, 2002 indemnifying therein that if any claim arises the petitioners would be liable to satisfy the same. In spite of execution of the relevant documents no refund payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Revenue during the course of hearing Customs applications/references sought adjournment on the ground that for want of time no orders could be obtained by the Revenue from the Tribunal on the application seeking stay of the order of the Tribunal giving rise to the refund in favour of the petitioners. At this stage, learned Counsel for the petitioners opposed the request for adjournment in view of ensuing long summer vacation and in the event or adjournment prayed for interim relief with permission to withdraw the amount of refund deposited with this Court. This prayer was strongly opposed by the Revenue. Learned Counsel for the petitioners pointed out to us that in all other similar connected matters. Revenue had actually refunded the amount of refund as directed by the Tribunal without any security and actually paid refund amount to all other claimants/assessees except petitioners. It was also brought to our notice that reference applications were filed in all cases of other claimants only after permitting them withdrawal of such amounts and actual payment thereof. In this backdrop, considering the prima facie case made out by the petitioners on merits, this Court was of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of this Court conferred under Article 226 of the Constitution of India so as to remove discrimination practised by the State in the matter of grant of refund. In order to demonstrate patent discrimination practised by the Customs department by way of affidavit dated 28th November, 2002 refund order dated 28th March, 2002 issued by the Assistant Commissioner of Customs, Appraising Group, Mumbai in favour of M/s. Stonemann Marble Industries for Rs. 1,39,60,000/- is brought on record and shown to us. This refund order was issued pursuant to the final order passed by the Tribunal in respect of the appeal filed by M/s. Stonemann Marble Industries who had imported Rough Marble Blocks and had suffered redemption fine and penalty. Pursuant to this order of the Tribunal refund amount of Rs. 1,39,60,000/- came to be paid on 5th April, 2002 without any security to M/s. Stonemann Marble Industries. 14.Mr. Kantawala further pointed out the Tribunal while deciding appeal of the present petitioners followed its own decision and reduced the amount of redemption fine and penalty imposed in the adjudication order. However, Customs Department refused to honour the decision of the Tribunal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of refund was absolutely arbitrary. The petitioners as such had no option but to approach this Court. 19.The petitioners submit that the amount due and payable, amounting to Rs. 1,35,39,000/- could not be utilised by them due to the arbitrary act of withholding the said amount. Mr. Kantawala pointed out that the amount was deposited in this Court on 13th August, 2002 by the Revenue only because of specific order directing deposit was made by this Court; appreciating the fact that in all other cases refund was granted even without any security even though those other persons were similarly circumstanced and that references were filed in their cases only after permitting them to lift the amount of refund. He, thus, submits that Revenue cannot take advantage of their own wrong doing and cannot make petitioners to suffer or cause to suffer interest loss on the amount which was due to them in these trying times. 20.Mr. Kantawala also submitted that the Revenue was unnecessarily litigating the same issue again and again and had chosen to wilfully disobey the order of the Tribunal. The reference applications were filed in spite of the knowledge that the Apex Court had upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvited by Mr. Desai to the various judgments of the Apex Court such as Union of India v. E. Merck (India) - 1998 (97) E.L.T. 218 (S.C.) = (1998) 9 SCC 412; Union of India v. Orient Enterprises, 1998 (99) E.L.T. 193 (S.C.); V.V.S. Sugars v. Govt. of A.P., (1999) 4 SCC 192. Reliance was also placed on the judgment of the Kerala High Court in the case of Kurumer Betta Estate v. I.T.O., 257 ITR 328 (Ker.) by Mr. Desai in support of his submissions. 23.Mr. Desai also contended that it is a well settled law that a writ petition under Article 226 for the purposes of interest is not at all maintainable. What cannot be done under the statute cannot be done via Article 220 of the Constitution is the last submission advanced by Mr. Desai. Consideration : 24.Having heard the parties at length, it would be appropriate to note the undisputed facts available on period. It is not in dispute that the petitioners were entitled to refund in the sum of Rs. 1.35 crore, in pursuance of the judgment and order of the Tribunal dated 16th April, 2002. The judgment and order of the Tribunal in petitioner's case was based on its earlier judgment in the case of M/s. Jai Bhagwati Impex Private Ltd.; where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which ultimately came to be dismissed by a reasoned order dated 3rd July, 2003, wherein we were constrained to observe as under : "...... It is not disputed by the Revenue that the facts in the case of the Respondents i.e. Marmo Classic and the facts in the case of Stonemann Marble Industries and Jai Bhagwati Impex Pvt. Ltd. are similar. On perusal of the orders passed by the Tribunal in the case of Stonemann Marble Industries and Jai Bhagwati Impex Pvt. Ltd., it is seen that the Tribunal has reduced the redemption fine and penalty by taking into account the margin of profits and the demurrage incurred by the importers of the said consignments. It is pertinent to note that the Tribunal in similar circumstances have taken a uniform view to restrict the redemption fine to 20% of the CIF value and penalty to 5% of the CIF value. Under these circumstances, it is evident that the decision of the Tribunal is essentially based on finding of fact. The Tribunal has reduced the redemption fine and penalty by taking into account its earlier decision as well as the margin profit and the amount of demurrage incurred on the goods. It is not disputed by the Revenue that the CEGAT has power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions made by the learned Counsel of the petitioner and grant simple interest to the petitioner for the period 21-5-1997 to 4-12-2001 at the rate of 6% p.a. on the amount of refund. If paid within 60 days from the date of receipt of writ of this judgment, otherwise the refund amount shall carry interest @10% p.a. instead of 6% p.a. as granted herein." 27.In this case, claim for refund was not at all in dispute. As a matter of fact. It was obligatory on the part of the Revenue to refund the said claim in pursuance of the order of the Tribunal dated 18th April, 2002. In spite of sanction of refund order and in spite of executing affidavit-cum-indemnity bond, the Revenue raised to handover refund cheque which compelled the petitioners to approach this Court. Had the respondents paid the amount of refund, petitioners would not have approached this Court. The prayer for stay made before the Tribunal was rejected by it. During the pendency of the reference proceedings, there is no provision for grant of stay to the order giving rise to reference. In these circumstances, there was absolutely no justification for the Revenue to delay refund to the petitioners. All the other similarly cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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