Customs, Excise and Gold Tribunal - Delhi
M/S. Antarctic Industries Ltd. vs Commissioner Of Customs, Kandla on 2 May, 2001
ORDER
V.K. Agrawal
1.The issue involved in this appeal filed by M/s. Antarctic Industries Ltd., is whether they have revised their claim for refund of Customs duty.
2. Shri K.K. Anand, learned Advocate,mentioned that the Appellants had imported 153.210 MT Heavy melting scrap and filed Bill of Entry No. 365 dated 12.1.95; that as on examination the goods were found to be old and used pipes, the value of the goods was enhanced and Customs duty amounting to Rs.23,123/- was collected and Rs.5 lakh was imposed as redemption fine in lieu of confiscation; that, however on appeal the Tribunal, vide Final Order No.585/98-B2 dated 4.8.98, allowed their appeal; that accordingly the appellants filed a refund claim for the amount of duty and fine paid by them; that the Assistant Commissioner, under Adjudication Order No. 6/98 dated 30.3.99, sanctioned the refund for Rs.5 lakhs only as according to him the Appellants, under their letter dated 8.3.99, had requested only refund of amount paid towards fine, that the Commissioner (Appels) also, under the impugned Order No. 960/2000, rejected their appeal, holding that it was clear fro, their letter that they wanted the Assistant Commissioner to refund them the amount of Rs.5 lakhs paid as fine and they would not claim refund of duty of Rs.23,122/-.
3. The learned Advocate submitted that in view of Tribunal's Order, they had applied for refund of Rs. 5 lakhs paid as fine and Rs.23,122/- paid as excess amount of duty; that they had also clarified about non-application of unjust enrichment in respect of imported goods used captively and they had produced a certificate from the Chartered accountant that the incidence of fine and duty had not been passed on to any person; that under their letter dated 8.3.99 they had only given up their claim for the duty amounting to Rs.4796/- paid in excess of what was being assessed by the Department.He explained that after adjudication they were liable to pay duty amounting to Rs.2,78,204/- whereas they paid Rs.2,83,000/- and as such paid Rs.4796/- in excess; that the appellants had only forgone the claim of the said excess amount paid under challan No. 1278/- dated 29.5.95 for which no claim was made in the application for refund. He also drew our attention to the endorsement made by them on the challan which reads "Excess Amt will not be claimed." He emphasised that this is apparent from Para 2 of the said letter dated 8.3.99 which reads as under:-
"In this regard, we have to state that we have already mentioned on challan No. 1278 dated 29.5.95 and 1138 dated 29.5.95 that we will not claim excess amount of duty."
He finally submitted that the said letter read with relevant challan makes it very clear that they had given up their claim for refund of duty paid in excess over the duty assessed by the Department and not in respect of the duty which has become refundable to them on account of Tribunal's Order allowing their appeal.
4. Countering the arguments, Shri M.P. Singh, learned D.R. submitted that it is apparent from letter dated 8.3.99 that the Appellants have revised their claim for refund to only Rs. 5 lakhs paid by them as 'redemption fine' and they had given up their claim for refund, the Assistant Commissioner was justified in not considering the refund claim for the amount of customs duty paid by them. He, further, submitted that as they had never filed claim of duty paid over and above the assessed duty, the question of that duty being covered by letter dated 8.3.99 does not arise.
5. We have considered the submissions of both the sides. After filing the refund for Rs.5,23,122/- the Appellants filed a letter dated 8.3.99 with the Department which is reproduced below:-
"ANTARCTIC INDUSTRIES LIMITED Dated 08/03/99 To, The Assistant Commissioner (Refund), Customs House, Kandla.
Sir, Req:Refund claim for Rs.5,23,122/- consequential to Appellate order No. 585/98/-B-2, New Delhi Dt. 4.8.98. Kindly refer to our application dt. 27.10.98 for claim for refund of Rs.5,23,122/--(Diff.Duty Rs.23,122/- + Fine amount Rs.5,00,00/-). In this regard, we have to state that we have already mentioned on challan No. 1278 dt. 29.5.95 & 1138 dt. 29.5.95, that will not claim excess amount of duty. In view of these facts, we request your good self to sanction our claim for refund for amount of Rs.5 lakhs only being amount paid as fine. Thanking you, Yours faithfully, For ANTARCTIC INDUSTRIES LIMITED, Sd/-
(Jaswantrai Khullar) Authorised signatory"
6. It is thus apparent from the letter that the Appellants had amended their original claim for refund of Rs.5,23,122/- for Rs. 5,00,000/- only as they requested the Assistant Collector to sanction their claim for Rs.5 lakhs only being amount paid as fine. The reliance of the learned Advocate on Para 2 of the said letter is misplaced in view of the categorical request made by the Appellants for refund of only amount paid as fine (SIC) of the letter. The learned D.R. has rightly pointed out that as the duty amount paid over and above the assessed duty was never claimed as refund in their claim, the question of giving up claim for that portion of duty under letter dated 8.3.99 does not arise, In view of these facts and circumstances, we do not find any infirmity in the impugned Order and accordingly reject the appeal filed by the Appellants.