Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Customs vs Hotline Cpt Ltd. on 7 October, 2004
Equivalent citations: 2005(179)ELT313(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. In this appeal, the Revenue has contested the correctness of the impugned order vide which the Commissioner (Appeals) has reversed the order-in-original of the adjudicating authority and allowed the refund claim pertaining to interest, of the respondents.
2. The facts are not much in dispute. The respondents warehoused the imported goods (parts of the colour picture tubes) after executing the necessary bond. The cleared the goods through various Bills of Entry from the warehouse during the period Jan. to Feb. 2004 after paying the duty along with the interest. The interest was paid by them for having kept the goods in the warehouse for a period of more than 30 days as prescribed under Section 61 of the Customs Act as amended vide Notification No. 23/2001-Cus. (N.T.) dated 22-5-2001. Thereafter, they lodged the claim for the refund of the interest on the ground that same was not payable by them as when they warehoused the goods, the period prescribed was six months during which they were required to remove the goods from the warehouse.
3. Shri H.C. Verma, Id. JDR has contended that since the period of retention of the goods in the warehouse was reduced to one month w.e.f. 1-6-2001 through the above said notification, the respondents were duty bound to clear the goods within that period and for having no done so, they voluntarily rightly paid the interest along with the duty amount. Therefore, no refund of interest could be allowed to them by the Commissioner (Appeals). He has also contended that without challenging the assessment on the Bills of Entries vide which the goods were cleared, no claim for interest paid by the respondents is legally maintainable in view of the Apex Court judgment in case of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)].
4. On the other hand, Id. Counsel has contended that the amendment to Section 61 of the Customs Act reducing the period of retention of the goods in the warehouse from six months to 30 days did not have a retrospective effect and the old period of six months was applicable to the present case of the respondents. He has relied upon the ratio of the law laid down in the case of CCE v. J.K. Synthetics Ltd. [1991 (56) E.L.T. 236 (Tribunal)] and in the case of Bangalore Wire Rod Mills v. Union of India [1992 (61) E.L.T. 37 (Kar.)]. For refuting the contention regarding non-maintainability of refund claim raised by the Id. JDR, Counsel has also contended that it was not alleged in the show cause notice that the refund claim could not be filed by the respondents without challenging the assessment orders on the Bills of Entries. Therefore, this stand cannot be allowed to be taken by the Revenue.
5. We have heard both the sides and gone though the record.
6. From the record, we find that when the provisions of Section 61 of the Customs Act reducing the warehoused period of the goods from six months to 30 days through the Notification dated 22-5-2001 w.e.f. 1-6-2001 were amended, the goods of the respondents were still laying in the warehouse. The duty and the other charges were to be paid at the time of the clearance of the goods. The amended period was applicable to them and this position was also made clear to them by the CBEC vide letter dated 11-10-2001. It is not the case of the respondents that this letter did not come to their notice. They never disputed the correctness of this notice of the Board. Rather they accepted it and paid the interest along with the duty as assessed on their Bills of Entries at the time of the clearance of the goods without any objection. They never disputed their liability to pay the interest on the ground that the amended provisions of Section 61 were not applicable to them. They have not placed on record the bond executed by them at the time of warehousing the goods. The ratio of law laid down in the case of J.K. Synthetics Ltd. (supra) is not attracted to the case of the respondents. In that case, the bonding period on account of amendment in Section 61 of the Customs Act made on 13-5-83 was reduced but an undertaking was given by the importer to pay the interest at the time of the clearance of the goods and that undertaking was sought to be enforced for claiming interest but the Tribunal did not allow the same by observing that the pre-amended law as in force will apply. Similarly, in the case of Bangalore Wire Rod Mills (supra), it has been observed that the rate of duty of customs would be the rate in force in the case of warehoused goods, as on the date of clearance of the goods from the warehouse. But in the present case, as observed above, the respondents themselves accepted the reduced period of bonding, and paid interest as assessed by the officers at the time when they submitted the Bills of Entries for clearance of the goods. No objection was raised by them.
7. Apart from this, the contention of the Id. JDR that without challenging assessment orders passed on their Bills of Entries, no refund claims could be lodged by the respondents, in our view, deserves to be accepted. In the case of Flock (India) Pvt. Ltd. (supra), the Apex Court has clearly ruled that where an appealable order has been passed under the Statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it would be not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund. The respondents, as observed above, did not challenge the assessment orders passed on the Bills of Entries, which were appealable orders and as such, their refund claims for the refund of the interest are legally not maintainable. The argument of the Id. Counsel that this very ground was not alleged in the show cause notice and cannot be taken by the Revenue, cannot be accepted for the simple reason that the law was not required to be pleaded in the show cause notice. Moreover, the legal issue can be raised by any party at any stage of the litigation. The doctrine of estopple does not apply to it. It is a pure question of law as to whether the refund claim could be filed by the respondents without questioning the correctness of the appealable orders passed by the competent authority on their Bills of Entries under which they paid interest along with the duty or not and this legal issue can be raised by the Revenue, this stage before us. Therefore, in our view, the refund claim of the respondents could not be allowed by the Commissioner (Appeals) in view of the Apex Court decision in the case of Flock (India) Pvt. Ltd. (supra).
8. In the light of discussion made above, the impugned order of the Commissioner (Appeals) cannot be sustained and the same is set aside. The appeal of the Revenue is accepted.