Petitioner entitled to refund of pre-deposit, emphasizing procedural compliance in appeals under the Customs Act.

1. Challenging the deficiency memo dated 6th March, 2025, the instant writ petition has been filed.

2. It is the petitioner’s case that although in course of investigation the petitioner had deposited a sum of Rs.30 lakhs and despite a portion of such amount being utilized by the petitioner for adjustment of the requirement of pre-deposit as required under Section 129E for maintaining an appeal under Section 128 (1) of the Customs Act, 1962 (hereinafter referred to as the “said Act”) and though in ordinary course upon the petitioner succeeding in the appeal such pre-deposit was required to be refunded to the petitioner upon the petitioner making an application, in the instant case, the aforesaid deficiency memo has been issued.

3. Mr. Das, learned senior advocate appearing in support of the writ petition has placed before this Court a supplementary affidavit to bring on record the relevant form no. CA -3 filled up and filed by the petitioner before the appellate authority for maintaining the appeal under the said Act. Let such supplementary affidavit filed in Court today be taken on record.

4. By referring to serial no. 14 of the above form and Section 129E of the said Act, it has been submitted that the petitioner had requested the authorities to treat Rs. 20,00,466.56 out of the total deposit of Rs.30 lakhs already made during investigation to markup the amount of 7.5% of the duty demand of Rs.2,66,72,887/-, and based on the above premise the petitioner’s appeal has been decided. Mr. Das would submit that unless Rs. 20,00,466.56 out of sum of Rs.30 lakhs was treated as pre-deposit by the appellate authority in respect of the appeal filed by the petitioner under Section 128 of the said Act, the appeal could not have been proceeded with in view of the specific embargo provided for in Section 129E of the said Act. It is submitted once, the petitioner has succeeded in appeal and on the petitioner making an application although, the respondents were obliged having regard to the Circular dated 16th September, 2014, issued by the Central Board of Excise & Customs, New Delhi, Ministry of Finance, Department of Revenue, Government of India, to refund the pre-deposit the same has not been done. On the contrary, the above deficiency memo has been issued by treating the aforesaid application for refund of pre-deposit, as a refund within the meaning of Section 27 of the said Act. Having regard thereto, he submits that the respondents should not be permitted to deviate from the settled procedure as provided for in the Circular dated 16th September, 2014 and an appropriate order should be passed directing the respondents to refund said sum of Rs.30 lakhs deposited by the petitioner in course of investigation.

5. Mr. Dey, learned advocate appearing on behalf of the Customs authorities on the other hand while falling back on Form No. CA -3 as disclosed by the petitioner while filing the appeal would submit that although as per serial no.14, the petitioner was required to seek dispensation of the payment of pre-deposit having regard to the payment allegedly being made in course of investigation, the same has not been done. On the contrary, the petitioner has sought for adjustment of Rs.20,00,466.56 out of the deposit of Rs.30 lakhs towards 7.5% of the duty demand. The aforesaid would clearly demonstrate the intent of the petitioner to treat the aforesaid sum as a duty demand. In any event, according to him, even if the petitioner is entitled to refund of the pre-deposit, such application has to be made in the mode and manner prescribed