The Daily Thanthi Vs Commissioner of Customs (Madras High Court)
High Court held that amount deposited during the pendency of the appeals before the Hon’ble Supreme Court has to be construed as having paid ‘under protest’ and has to be refunded without insisting on such importer or manufacturer satisfying the requirement of “unjust enrichment” as in the case of pre deposit. Such amount has to be considered outside the purview of sting of “unjust enrichment” in Section 27 of the Customs Act, 1962.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
This Writ Petition has been filed by the petitioner to direct the respondents to refund the amount of Rs.88,44,510/- paid by the petitioner during the pendency of its appeal before the Hon’ble Supreme Court in C.A.Nos.3558 and 3559 of 2000 along with interest at 12% per annum from 31.03.2005 (i.e. date of Supreme Court Judgment) till the date of payment.
2. The said appeal was filed against Final Order Nos.203-205 dated 07.02.2005 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Chennai [CEGAT for brevity]. CEGAT which is now called as the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) had partly allowed and partly dismissed the petitioner’s appeals vide the aforesaid common order.
3. The aforesaid amount of Rs.88,44,510/- was paid by the petitioner on 21.03.2001 “under protest” pending disposal of the above appeals before the Hon’ble Supreme Court in C.A.Nos.3558 and 3559 of 2000 as the Hon’ble Supreme Court had merely ordered notice on the respondents while admitting the appeal on 17.07.2000. The stay petition filed by the petitioner against Final Order Nos. 203-205 dated 07.02.2005 of the CEGAT was also dismissed on 6.11.2000.
4. Under these circumstances, a recovery notice was issued on 29.09.2000 to the petitioner, which called upon the petitioner to pay the aforesaid amount. Therefore, the petitioner paid the aforesaid amount “under protest” on 21.03.2001. Eventually, the Hon’ble Supreme Court allowed the appeal filed by the Petitioner on 07.04.2005. Under these circumstances, the petitioner approached the respondents and thereafter before this Court in the present writ petition.
5. The facts relevant to the present case are detailed hereinafter. The petitioner had earlier imported certain machineries for its printing purpose and availed the benefit of Customs Notification No.114/1980-Cus dated 19.6.1980.
6. The petitioner filed 3 bills of entries. These bills of entries were assessed by the proper officer of the Customs Department under Section 17 of the Customs Act, 1962 and the benefit of the exemption under the aforesaid Customs Notification was allowed to the petitioner at the time of clearance during October 1986, February 1987 and July 1987.
7. However, the petitioner was thereafter issued with 3 Show Cause Notices under Section 28 of the Customs Act, 1962 as detailed below and the benefit of aforesaid exemption notification was sought to be denied to the petitioner:-
