Voluntary deposit made during investigation & appropriated against demand cannot be treated as pre-deposit & thus cannot be refunded

Sky Airways Vs Commissioner of Customs (CESTAT Delhi)

Customs Duty Paid Voluntarily During Investigation cannot be claimed as refund when CESTAT remanded the matter for a fresh adjudication

The Hon’ble Customs, Excise & Service Tax Appellate Tribunal, New Delhi (CESTAT) in the matter of Sky Airways v. Commissioner of Customs (Appeals), New Delhi [Final Order No. 50715 of 2022 dated August 12, 2022] dismissed the appeal stating that the amount deposited voluntarily during the investigation cannot not be treated as an amount towards the pre-deposit and refunded as the same was appropriated against the demand.

Facts:

Sky airways (Appellant) voluntarily deposited Rs. 3,00,82,889/- during investigation however, a show cause notice dated August 03, 2009 (SCN) was issued to the Appellant to show cause as to why Rs. 3,00,82,889/- should not be demanded.

The SCN was adjudicated, and order dated May 19, 2010 was passed confirming the demand and appropriating Rs. 3,00,82,889/- against the demand. The Appellant being aggrieved filed an appeal before the Hon’ble CESTAT and the demand was set aside and the matter was remanded back to the adjudicating authority to pass a fresh order in the light of the directions issued by the Hon’ble CESTAT with a direction to the parties to maintain the status quo.

Subsequently, the Appellant filed a refund claim on October 16, 2017 for refund of Rs. 3,00,82,889/- which was rejected by the Assistant Commissioner vide the order-in-original dated March 19, 2018 (“the OIO”) and upheld by the Commissioner of Customs (Appeals) (“the Respondent”) vide order-in-appeal dated June 17, 2019 (“the OIA”). Being aggrieved present appeal has been preferred by the Appellant.

The Appellant contended that the voluntarily deposit of Rs. 3,00,82,889/- made during the investigation, should be treated as a pre-deposit amount and should be refunded as the appeal filed by the Appellant was allowed by the Hon’ble CESTAT.

Issue:

Whether or not the claim of refund will be sustainable merely on the ground that it was pre-deposit deposited during the investigation stage?

Held:

The Hon’ble CESTAT in Final Order No. 50715 of 2022 dated August 12, 2022, held as under:

• Noted that, the Appellant had not deposited the amount towards the pre-deposit and in any view of the matter, the Hon’ble CESTAT had even after setting aside the order dated May 19, 2010 appealed against, remanded the matter for a fresh adjudication with a direction to the parties to maintain the status quo.
• Thus, held that the Appellant was bound by this order of the Hon’ble CESTAT of status quo and could not have asked for the refund of the amount deposited voluntarily during investigation, which amount had been confirmed and appropriated against the demand vide order dated May 19, 2010.

FULL TEXT OF THE CESTAT DELHI ORDER

This appeal was filed on September 30, 2019 and despite notice having been served upon the appellant on June 24, 2022, no one has appeared on behalf of the appellant.

2. This appeal is directed against the order dated June 17,2019 passed by the Commissioner of Customs (Appeals)¹ by which the order dated March 19, 2018 passed by the Assistant Commissioner has been upheld and the appeal has been rejected. The Assistant Commissioner, by the aforesaid order, rejected the refund claim of Rs. 3,00,82,889/- filed by the appellant. A perusal of the order shows that, the Assistant Commissioner rejected the contention advanced by the appellant that the aforesaid amount, which was voluntarily deposited by the appellant during the investigation, should be treated as a pre-deposit amount and should be refunded as the appeal filed by the appellant for setting aside the order confirming the demand was allowed the demand was set aside with a direction to the adjudicating authority to pass a fresh order in the light of the directions issued by the Tribunal.

3. Earlier, a show cause notice dated August 03, 2009 was issued to the appellant to show cause as to why customs duty amounting of Rs.3,00,82,889/- be not demanded under section 28 of the Customs Act 1982², and the helicopter should not be confiscated under section 111(d) and section 111(o) of the Customs Act and fine should not be imposed. This show cause notice was adjudicated upon by an order dated May 19, 2010. The helicopter was confiscated with an option to redeem the same after payment of redemption fine and the demand of duty was confirmed. It was, however, appropriated as the appellant had already deposited the said amount during investigation. It is against this order that the appellant had earlier filed an appeal before this Tribunal. This appeal was heard on June 16, 2017 with seven other appeals. An issue that was raised by the appellants was regarding the jurisdiction of the Commissioner of Customs (Preventive) to issue the show cause notice. The operative part of the order passed by the Tribunal is reproduced below:

“13. By following the ratio laid down by the Hon’ble High Court of Delhi in the case of BSNL (Supra) as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of Mangli Impex and then, on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision the status quo will be maintained

“14. In the result, appeals filed by the assessee/Department are allowed by way of remand.”

4. Learned authorized representative appearing for the Department has stated that after the remand, the matter has not been adjudicated upon by the Assistant Commissioner.

5. The appellant had filed a refund claim on October 16, 2017 pursuant to the order passed by the Tribunal contending that it is entitled to refund Rs.3,00,82,889/- since the order of the adjudicating authority was set aside by the Tribunal. This refund claim was rejected by the Assistant Commissioner by order dated March 19, 2018. The contention of the appellant that the amount deposited voluntarily during investigation should be treated as amount towards the pre-deposit was rejected for the reason that it was not an amount deposited at the time of filing of the appeal. The Assistant Commissioner also noted that after setting aside the order passed by the Assistant Commissioner, the Tribunal had remanded the matter to the Assistant Commissioner to pass a fresh order with regard to the jurisdiction of the officer to issue the show cause notice after the Supreme Court decided the issue pending before the Supreme Court. The Assistant Commissioner also noticed that the Tribunal had also directed the parties to maintain status quo till the matter was decided afresh pursuant to the order passed by the Tribunal. It is this order dated March 19, 2018 that was assailed before the Commissioner (Appeals), who by order dated June 17, 2019 dismissed the appeal.

6. Even though learned counsel for the appellant has not appeared, we have perused the file and have also heard Shri Rakesh Kumar, learned authorized representative appearing for the department.

7. We are satisfied that the order passed by the Commissioner (Appeals) does not suffer from any infirmity so as to call for any interference by the Tribunal.

8. The appellant had not deposited the amount towards the pre-deposit and in any view of the matter the Tribunal had even after setting aside the order appealed against remanded the matter for a fresh adjudication with a direction to the parties to maintain status quo. The appellant was bound by this order of status quo passed by the Tribunal and could not have asked for the refund of the amount deposited by the appellant voluntary during investigation, which amount had been confirmed and appropriated by the order impugned before the Tribunal in the earlier round of proceedings.

9. Therefore, there is no merit in this appeal. It is, accordingly, dismissed.

(Order dictated and pronounced in the Open Court)

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