Customs, Excise and Gold Tribunal - Mumbai
Sharp Industries Ltd. vs Commissioner Of Central Excise on 13 January, 2006
Equivalent citations: 2006(104)ECC56, 2006ECR56(TRI.-MUMBAI), 2007[8]S.T.R.332
ORDER Archana Wadhwa, Member (J)
1. The issue involved in the present appeal is refund claim of Rs. 24,75,700/- (Rupees twenty four lakhs seventy five thousand seven hundred only) which was seized by the DGAE officers during the course of search of the factory premises of the appellant. Along with the seizure of said Indian Currency, other documents were also seized based upon which duty of Rs. 1,28,31,891.95 (Rupees one crore twenty eight lakhs thirty one thousand eight hundred ninety one rupees and ninety five paise only) was raised against them along with proposal for confiscation of the Indian currency. The said notice culminated into an order dt. 22-1-1996 confirming the demand and confiscating the currency. The said order was subsequently set aside by the Tribunal and matter remanded for de novo adjudication. During the de novo adjudication the demand was again confirmed along with imposition of penalties and seized to Indian currency was confiscated with an option to the appellant to redeem the same on payment of redemption fine of Rs. 24,75,000/-(Rupees twenty four lakhs seventy five thousand only). The said order was appealed against by the appellant before the Tribunal.
2. Before the above appeal was decided by the Tribunal, Kar Vivad Samadhan Scheme came into existence. The appellant availed the same and filed the declaration before the designated authority, which was accepted by the said authority. However, as regards the Indian currency, the appellant did not file any declaration but submitted that the refund of the same would be filed by them separately.
3. Accordingly, appellants filed a refund claim on 20-4-99, which, after a long litigation, was rejected by the Assistant Commissioner vide his order dt. 9-7-2001. Appeal against the above also did not succeed before Commissioner (Appeals); hence the present appeal.
4. We have heard Shri M.H. Patil Id. Advocate appearing for the appellant and Shri S.S. Bhagat Id. SDR appearing for the Revenue.
5. Commissioner (Appeals) while rejecting the appeal observed as under :
(i) that in the absence of evidence of exercise of their option for redemption of the seized currency within one month or such extended period from the date of receipt of Order-in-Original, the currency stands absolutely confiscated as per order-in-original and, hence, such relief could only be available through appeal before CEGAT.
(ii) that in view of availment of the benefit under KVSS, the appellants have forfeited their right to claim the benefit of their appeal before CEGAT.
(iii) that even in the order under KVSS, the appellants' request to adjust the said currency amount against the duty payable has not been accepted which obviously is for the reason that the said amount stood absolutely confiscated and was no more available for the assessee.
(iv) that the circular of CBEC quoted by the Appellants is also of no help to them as the same clarified the issues for settling matters under the KVSS;
(v) that the clarification under Trade Notice are overriding the other provision relating to "sale proceeds" at Sr. No. 17 of the instructions, the same is not applicable.
6. It is seen that while the ultimate order passed by the Commissioner in de novo proceedings, Indian currency was seized with option to the appellant to redeem the same. Though the said order was appealed against before CEGAT, the disputed amounts were ultimately settled in terms of the provisions of KVSS Scheme. The Indian currency was not the subject matter of such settlement. As such, the order of the Commissioner confiscating the Indian currency with an option to the appellant to redeem the same on payment of redemption fine attained finality. As such, the appellant cannot claim the refund of the same later on. Once an adjudication order is passed, the same is required to be set-aside for an assessee to claim the consequential relief. Inasmuch as, the impugned order was not set aside by any higher authorities, confiscation of Indian currency would stand and the same cannot be refunded to the appellant.
7. In view of foregoing, we do not find any merits in the appeal and reject the same.