S.S. Garg ORDER
S.S. Garg, Member (J)
1. The present appeal is directed against the impugned order dated 11.1.2016 passed by the Commissioner of Customs (A) whereby the Commissioner (A) set aside the Order-in-Original and allowed the appeal of the appellant on the condition that refund is to be granted to the appellant only on production of necessary documents of evidences as demanded by the original authority.
2. Briefly the facts of the present case are M/s. Cargo care International CHA had filed B/E No. 173322/02.02.2006 on behalf of Mohammad Shaheed, 4, Makaliamman Koil Street, Egmore, Chennai- 600 057, Passport No. A2369585, who had imported one unit of 'Toyota Soarer' Car which was adjudicated vide Order (Original) No. 51/2006 dated 07.08.2006 and on account of mis-declaration the value of vehicle was re-determined as Rs. 11,22,610/- and a RF of Rs. 3,30,000/- and a Penalty of Rs. 1,70,000/- was imposed. The Commissioner (Appeals) vide order No. 478/2007 dated 24.09.2007 ordered that the declared value be accepted and reduced the RF to Rs. 1,00,000/- and penalty to Rs. 50,000/- and also allowed the Plea for quashing the "No Sale Condition' imposed by the Original Authority. Thereafter, the appellant Shri Mohammad Shaheed, Periyadekka House, Mulleriya, Kasargode- 671543 had filed a refund application on 31.10.2007 for an amount of Rs. 11,55,253/- on account of difference in Duty, Redemption Fine and Penalty in pursuance of the aforesaid Order of the Commissioner of Customs (Appeals). A deficiency memo was issued to the Appellant as it was noticed that the originals of B/E and TR6 Challan evidencing payment of duty, fine and penalty were not furnished as stipulated under Sections 27, 28C and 28D of the Customs Act 1962 read with Customs Refund Application (Forms) Regulation 1995. The requirement of documents was challenged by the Appellant in the Hon'ble High Court of Kerala which directed the department to dispose of the refund claim of the Appellant after affording him opportunity for personal hearing. The Appellant preferred an Appeal against the High Court Order vide W.A. No. 485/2010. The Refund Claim of the appellant was rejected by the Original Authority vide Order No. 86/10 dated 11.05.2010 as he failed to furnish the documents demanded by the Department. The appellant again filed an appeal against this order vide Order (Appeal) No. 67/2013 dated 19.09.2013 wherein it was ordered by the Commissioner of Customs (Appeals) that refund may be granted on production of the necessary documents/evidence in support of his claim as envisaged under Section 27 of the Customs Act 1962. On basis of this order, the appellant submitted a letter dated 7.01.2014 for refund along with Self attested copy of the TR6 Challan and Bill of Entry. The department issued a letter dated 27.03.2014 to produce the documentary evidence substantiating his claim that the original B/E and TR6 Challan were submitted before the RTO authorities. Meanwhile the High Court of Kerala dismissed the Writ Appeal No. 485/2010 filed by the Appellant. The Appellant filed a Writ Petition No. 6477/2014 wherein the Department was directed to allow the Refund claim of the appellant after verifying the genuineness of the documents produced by the Appellant. The Original Authority rejected the Refund claim of the Appellant vide Order No. 1041/2014 dated 19.12.2014 for the reason that he could not furnish the required evidence. Aggrieved by the Order-in-Original, the appellant preferred an appeal before the Commissioner (A) and the Commissioner (A) set aside the Order-in-original and allowed the appeal subject to furnishing of necessary documents. Aggrieved by this order, the appellant has filed this present appeal.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed by ignoring the specific direction of Hon'ble High Court of Kerala. He further submitted as per the Customs Act, 1962, respondent is empowered to issue only an order under Section 27 of the Customs Act covering all the grounds for rejection of claim whereas in Annexure-G order, there was no allegation regarding identity of the appellant. The said order was set aside by the Commissioner (A). Thereafter the respondent can only adjudicate the issue as per the remand order. He further submitted that the original authority is raising new and new grounds for rejection of the refund only to harass the appellant. He further submitted that authorities below have failed to appreciate that as per the directions by the Hon'ble High Court of Kerala, the appellant and his counsel appeared before the respondent and submitted all the documents which were sufficient to prove that appellant is the importer and the person eligible to get refund and the respondent has not raised any objection or dispute regarding the identity of the appellant. During investigation also no objection was raised regarding identity of the appellant who appeared before the officers of SIIB. He also submitted that the authorities below have disobeyed the direction of the Hon'ble High Court wherein the Hon'ble High Court held that documents including bills of entry produced by the appellant was sufficient to meet the requirement of refund claim and insistence of other documents are only of a technical argument. It was specifically directed by the Hon'ble High Court of Kerala vide its order dated 12.11.2014 that on producing identity and account details, refund shall be effected to the petitioner within a period of four weeks. Learned counsel further submitted that in order to prove his identity, he has produced the certificate issued by the Padi Village Office, Govt. of Kerala dated 19.12.2015 certifying that Mohammad Shaheed and Shahid M are one and the same and this evidence is sufficient to prove that the claimant is eligible for refund amount. He further submitted that in additional to this certificate, the appellant has filed an affidavit declaring that Mohammad Shaheed, Sahid M and Sahid Mohammad are one and the same person i.e., the appellant. He further submitted that as per Section 27(2)(b) of the Customs Act unjust enrichment is not applicable in case of personal import and in the present case, as per Bill of Entry, import of goods was allowed under IE Code 0100000045 which is applicable to import of goods for personal use and not connected with any trade or manufacture. The learned counsel further submitted that as per Section 27(a) of the Customs Act, if no refund is made within a period of three months from the date of receipt of application, then the applicant/appellant is entitled to receive interest on such delayed payment after the expiry of three months from the date of receipt of such application till the date of refund of such duty and in the present case, the refund claim was submitted on 30.10.2007. In support of this submission, he relied upon the decision rendered in the case of Finolex Cables Ltd. v. CC, Goa: MANU/CM/0528/2014 : 2015 (317) ELT 259 (Tri.-Mumbai) wherein it was held that the deficiency of document while submitting the refund application, it is not a reason to deny interest. He also relied upon the decision rendered in the case of Ranbaxy Laboratories Ltd. as reported in MANU/SC/1269/2011 : 2011 (273) E.L.T. 3 (SC) wherein the Hon'ble Supreme Court has held that if refund is not granted within the stipulated period of three months from the date of filing the refund application, then the assessee would be entitled to interest as per law.
5. On the other hand, the learned AR defended the impugned order and submitted that as per the impugned order, appellants are entitled to refund but he has to furnish the proof of identity and accounts details and other documents.
6. After considering the submissions of both the parties, I find that the original authority has rejected the refund claim on the ground which is not sustainable in law. I also find that once the Hon'ble High Court of Kerala in its order dated 12.11.2014 had specifically given direction that on producing identity and account details refund shall be effected to the petitioner within a period of four weeks and after the judgment of the Kerala High Court the appellant has produced the certificate obtained from the Padi Village Office, Government of Kerala and also an affidavit clarifying that Mohammad Shaheed, Sahid M and Sahid Mohammad are one and the same person. Moreover, his identity was never in dispute from the very beginning even during investigation. His statement was recorded and he is appearing before the officers of the custom and this reason has been coined by the original authority only for the purpose of denial of rightful claim of refund. Now since the appellant has clarified about his identity also, therefore there is no reason left for the respondent to deny the refund claim. Therefore keeping in view my discussions above and examination of various orders passed by Revenue authorities as well as the judgments of the Hon'ble High Court of Kerala, I am of the considered view that appellants are entitled for refund and therefore, I allow the appeal of the appellant by setting aside the impugned order. I also hold that appellants are entitled for interest as per law. Appeal is allowed with consequential relief.
(Order was pronounced in open court on 27/06/2017.)
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