CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

NEW DELHI

PRINCIPAL BENCH - COURT NO. II

Customs Cross Application No. 50769 of 2022 (SM)

in

Customs Appeal No. 52157 of 2022

(Arising out of Order-in-Appeal No. CC(A) CUS/D-II/Prev./NCH/860/2022-23 dated

21.07.2022 passed by the Commissioner of Customs (Appeals), New Delhi)

Principal Commissioner, Customs-

New Delhi (Prev)

Appellant

New Customs House, Near IGI Airport,

New Delhi-110037

M/s Mahavir Overseas

2393/114, Vidya Market,

Chatta Shahji, Chawri Bazar,

Delhi-110006

Respondent

APPEARANCE:

Mr. Vishwajeet Saharan, Authorised Representative for the Appellant

Mr. Rajat Doshi, Advocate for the Respondent

CORAM:

HON’BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)

FINAL ORDER NO. 50068 / 2023

Date of Hearing: 20.01.2023

Date of Decision: 20.01.2023

ANIL CHOUDHARY:

Heard the parties.

2. Revenue is in appeal against impugned Order-in-Appeal

whereby the respondent-assessee, regular importer of self-adhesive

thermal paper have been granted refund of amount deposited during

investigation of Rs. 40 lakhs. The respondent-assessee has filed

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cross-objection being aggrieved for non-grant of interest on the

refund amount.

3. The brief facts are that revenue commenced investigation

during 2014 as it appeared that the respondent importer was mis-

declaring the imported goods as well as undervaluing the goods. In

the course of investigation, with regard to the current Bills of Entry

being BOE no. 7493283 dated 25.11.2014 and bill of entry no.

7480226 dated 24.11.2014, goods were detained and seized on the

reasonable belief of mis-declaration as to classification and value

under panchnama dated 03.12.2014 and 09.12.2014. Thus, the

revenue observed that even the past imports have also been

undervalued. Accordingly, the appellant was made to deposit an

amount of Rs. 40 lakhs which was deposited by TR 6 challans dated

18.12.2014 Rs. 30 lakhs and on 19.12.2014 Rs. 10 lakhs. After, this

deposit, during investigation stage, the goods of aforementioned bills

of entry were granted provisional release on 23.12.2014 and

28.12.2014, after taking PD bond. Thereafter, as no show cause

notice was received by the assessee, they filed refund claim after

about six years on 09.10.2020.

4. The refund claim was adjudicated vide O-I-O dated 29.07.2021

and the same was rejected on the ground that original copy of bill of

entry and TR-6 challan could not be made available. Being

aggrieved, the respondent-assessee preferred appeal before the

learned Commissioner (Appeals) who vide impugned Order-in-Appeal

dated 20.07.2022 have been pleased to hold that the said amount of

Rs. 40 lakhs was in the nature of pre-deposit, deposited during

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investigation. The Commissioner (Appeals) also made enquiry from

the field formation, the refund section Preventive Commissionerate.

The Assistant Commissioner refund vide report dated 12.07.2022

intimated that respondent-assessee have deposited total amount of

40 lakhs in December 2014, as pre-deposit during investigation in

respect of the aforementioned bills of entry. It was also intimated

that no SCN was issued and/or adjudication was passed, as the

matter was dropped. Accordingly, the learned Commissioner

(Appeals) held that there is no ground to reject the refund and

accordingly, directed to grant the refund after taking I. Bond, on

record, if required.

5. Being aggrieved, revenue is in appeal on the ground that

under the Customs Act, there is no provision requiring an assessee

to make a pre-deposit during investigation and further the

respondent-assessee have made the claim after the period of six

years, further no protest letter was filed by the assessee at the time

of deposit or soon thereafter. It is also urged