Refund of Duty Paid Without Protest Requires Assessment Challenge

Pramila Jain Vs Commissioner of Customs & Central Excise (CESTAT Allahabad)

The appeal is against the dismissal of a refund claim by the Commissioner (Appeal) Customs and Central Excise Lucknow. The appellant, Pramila Jain, had filed a refund application seeking the return of excess customs duty paid. The appellant’s gold biscuits were seized, and upon appeal to CESTAT, they were allowed redemption on payment of a fine and customs duty. The appellant then sought a refund, arguing that they had paid more than what was legally required. However, the refund was rejected, citing the appellant’s failure to challenge the duty determination in the initial order. The order highlights several legal precedents, emphasizing that refund claims cannot be entertained if the duty assessment has not been challenged and modified by the appellate authority. Consequently, the appeal was dismissed.

FULL TEXT OF THE CESTAT ALLAHABAD ORDER

This appeal is directed against Order-In-Appeal No. 488-CUS/APPL/LKO/ 2018 dated 17.09.2018 of Commissioner (Appeal) Customs and Central Excise Lucknow. By the impugned order appeal filed by the appellant against Order-In-Original rejecting the refund claim filed by the appellant has been dismissed.

2.1 Appellant filed the refund application on 19.10.2012 for refund of Rs. 15,78,001/- under Section 27(1) (a) of the Customs Act, 1962 for refund of customs duty/interest which has been paid in excess by them in pursuance to the Hon’ble CESTAT’s Final Order No. C/498- 503/2011-CU(DB) dated 22.11.2011.

2.2 Vide Order-in-Original No. 13/Cus/Commr/Adj/2005 dated 23.12.2005, absolute confiscation of the seized 36 Gold Biscuits weighing 4.199 Kg was adjudged

2.3 Aggrieved appellant preferred an appeal before CESTAT. Final Order No C/498-503/2011-CU(DB) dated 22.11.2011, following was held:

“21. Considering these aspects, we are of the view that absolute confiscation of the goods ordered by the Commissioner is not maintainable. Therefore, we give an option to the Appellants i.e M/s Panna Lal Banarasi Das to redeem the goods on payment of a redemption fine of 10% of the value of the goods for the seized goods i.e. on payment of Rs.2,18,350/- (Rupees Two lakhs eighteen thousand three hundred and fifty). While deciding this amount we have taken into account the long delay, since 2002, in releasing the goods to the owners. While redeeming the goods appellants have to pay Customs duties as applicable in terms of Section 125(2) of the Customs Act.”

2.4 Thereafter Appellant filed an application on 27.01.2012 to ascertain the amount of Customs duty to be paid by them in compliance of the aforesaid Hon’ble CESTAT’s order. He was informed vide letter dated 09.05.2012 and 18.05.2012 for depositing Customs duty amounting to Rs. 18,11,898/- (Rs. Eighteen lakhs eleven thousand eight hundred ninety eight) [Rs. 13,19,267/- (+) Rs. 4,92,631/-].

2.5 Appellant paid the redemption fine and the Custom Duty ascertained and redeemed the gold biscuits as per the CESTAT order.

2.6 In the refund application dated 19.10.2012, the party claimed that Customs duty of Rs. 2,33,897/- may be charged on seized value of the goods and excess amount of Rs. 15,78,001/- paid by them at the time of release of goods, may be refunded to them.

2.7 A Show Cause Notice dated 14.01.2013 asking the party to Show Cause as to why the refund claim dated 19.10.2012 of Customs duty for Rs. 15,78,001/-should not be rejected as the Customs duty of Rs. 18,11,898/- has been correctly paid by them in pursuance to the Hon’ble CESTAT Final Order No. C/498-503/2011-CU(DB) dated 22.11.2011 and the letters dated 09.05.2012 and 18.05.2012 issued by the department.

2.8 The show cause notice was adjudicated rejecting the refund claim filed by the appellant.

2.9 Aggrieved appellant filed the appeal before the Commissioner (Appeal) which has been dismissed as per the impugned order.

2.10 Hence this appeal.

3.1 Have heard Shri A P Mathur and Shri M P Saraf Advocates for the appellant and Shri Santosh Kumar Authorized Representative for the revenue.

3.2 Arguing for the appellant learned counsel submits:

> The value of the confiscated gold, was ascertained at Rs 21,83,500.80 (seizure value) and the redemption fine was determined as 10% of the said value by the CESTAT.

> Revenue should have determined the duty payable in terms of Section 125 (2) on the basis of the value determined in the CESTAT order, and not as per the current value at the time of the redemption of goods, as has been held in the following decisions

• • M S Shoes East Ltd. [2007 (210) ELT 641 (SC)]
  • Bharat Surfactants Pvt Ltd. [1989 (43) ELT 189 (SC)]

> Appellant had paid the duty, as determined by the authorities along with the redemption fine imposed and have redeemed the said gold biscuits.

> Appellant subsequently have filed this refund application as the duty paid by them was much in excess of what was legally payable.

> Authorities below have rejected the refund application contrary to the provisions of law and the appellant have suffered loss, mental pain and agony for the long delay in release of the gold to him since seizure in 2002. The duty demanded is inequitable.

3.3 Arguing for the revenue learned authorized representative while re-iterating the findings recorded in the impugned order submits that this refund application is not maintainable.

4.1 I have considered the impugned order along with the submissions made in appeal and during the course of argument.

4.2 Impugned order records as following:

“6. I have gone through the case record. The point for determination is whether the appellant is required to pay duty on the current value of gold (at the time of release) or on the seizure value thereof. In this regard it is relevant to mention that seizure value is never meant for charging duty. For charging Customs duty, valuation has to be done under the provisions of the Customs Act. As the gold is subject to tariff valuation, the determination of the tariff value has to be done under section 15 of the said Act.

7. The appellant have argued that provisions of section 15 will not apply to baggage and postal imports. However, they could not produce any evidence to show that the impugned gold was imported either as baggage or by post. Therefore, this argument is not acceptable. Similarly the case laws cited by them are also not applicable to the instant case as in the said cases bills of entry were filed for clearance of the consignments. Hence, the case falls under the purview of section 15 (1) (c) of the said Act and the valuation done by the department is correct. The, impugned order is, therefore, sustainable.”

4.3 Order in original records the following reasons for rejection of the refund claim:

“8 .DISCUSSIONS & FINDINGS :-

I have carefully gone through the brief facts of the case. Show Cause Notice Issued to party, defence reply submitted by the party and submissions made by them at the time of personal hearing. The only issue involved in the case is that whether the party is required to pay the duty on the present value of the goods or the seized value of the goods in pursuance of Hon’ble CESTAT Final Order No. C/498-503/2011-CU(DB) dated 22.11.2011.

9. I find that the Hon’ble CESTAT in their Order dated 22.11.2011 ordered to redeem the goods on payment of a redemption fine of 10% value of the seized goods i.e. on payment of Rs. 2,18,350/- (Rupees Two lakhs eighteen thousand three hundred fifty). While deciding this amount, they have taken into account the long delay, since 2002, in releasing the goods to the owners. While redeeming the goods appellants have to pay customs duties as applicable in terms of Section 125(2) of the Customs Act,1962. Thus, it is clear that the appellant is required to pay the duty terms of Section 125(2) of the Customs Act, 1962.

10. The relevant text of the Section 125(2) of the Customs Act is reproduced below:

“Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods.”

From the above, it is clear that owner of such goods to whom any fine in lieu of confiscation under Section 125(1) is imposed shall, in addition, be liable to any duty and charges payable in respect of such goods. In the instant case, the 36 Gold biscuits were not Imported by proper import licence, therefore the duty exemption vide Notfn. No. 02/2012-Cus wil not be available to them and Customs duty on 36 gold biscuits weighing 4199.04 gms is to be determined at the rate available at present in view of Section 15(1)c of Customs Act, 1962 The plea taken by the party that the provisions of sec 15(1)c is not applicable to baggage and 6oods imported by post as the goods in question were not imported by proper import licence.”

11. The provisions of Sec 77 refers to declaration made by the owner of any baggage before the proper officer. Thus, the said provisions are not applicable in this case under the facts and circumstances of the case.

12. In view of the foregoing, I find that the party was directed to deposit the duty in pursuance of Hon’ble CESTAT Final Order No. C/498-503/2011-CU(DB) dated 22.11.2011 vide this office letters dated 09.05.2012 and 18.05.2012 issued by the department. I observe that the party had not raised the questions of excess payment of Rs. 15,78,001/- (Rs. Fifteen lakhs seventy eight thousand one) at the time of depositing the duty. The party had deposited the duty as informed by the department and had not paid any excess duty. Thus, the refund claim made by the party vide application dated 19.10.2012 is not sustainable under the eyes of law as discussed above.”

4.4 The text of letter dated 09.05.2012 issued by the Additional Commissioner, is reproduced below:

“Subject: Deposit of dues on 36 gold Biscuits of foreign origin.

Please refer to your letter dated 06.01.2012 seeking amount of Customs Duty to be paid in compliance to CESTAT final order No C/498-503/2011-CU(DB) dated 22.11.2011.

The 36 gold biscuits were not imported by proper import licence, therefore the duty exemption vide notification No 2/2012_Cus will not be available for you and Customs duty on 36 gold biscuits weighing 4199.04 gms is determined at the rate available at present in view of section15 (1) c of the Customs Act, 1962. Details of duty are as under:

It is therefore requested to deposit customs duty, redemption fine & penalty at the earliest for release of gold.

-Sd
ADDL. COMMISSIONER (CUSTOMS)
CENTRAL EXCISE::KANPUR”

Appellant vide TR-6 Challan No 01 dated 11.05.2012 deposited the duty as determined and communicated by the Additional Commissioner along with the redemption fine and penalties. From the perusal of the TR-6 challan it is evident that appellant had deposited the duties, without any protest or questioning the determination of duty as per this letter.

4.5 Subsequently vide letter dated 18.05.2012, following was communicated to the appellant:

“Subject: Deposit of dues on 36 gold Biscuits of foreign origin.

Please refer to this office letter even C No 6231-32 dt 09.05.12 in which the duty amount was communicated.

In the said letter SAD duty has been wrongly calculated & communicated as Rs. 50741/- where as correct SAD to be paid is Rs 543372/-

It is therefore requested to deposit the differential amount of Rs 4,92,631/- and submit copy of Tr-6 for further action at this end.

Yours sincerely
-Sd
DEPUTY COMMISSIONER (CUSTOMS)
CENTRAL EXCISE::KANPUR”

Appellant vide TR-6 Challan No 04 dated 14.06.2012 deposited the additional duty as communicated by the Deputy Commissioner. From the perusal of the TR-6 challan it is evident that appellant had deposited the this amount, without any protest or questioning the determination of duty as per this letter.

4.6 From the letter as above it is evident that the these letters are in nature of assessment order determining the duty payable on the gold sought to redeemed as per the order dated 22.11.2011 of CESTAT. Appellant had not challenged the determination of the duty as per these letters/ assessment orders before the appellate authority and got the order modified in appeal. It is settled law that appellant refund claim wherein the order determining the duty is not challenged and modified in appeal by the appellate authority, refund claim is not maintainable. Refund proceedings in terms of Section 27 of the Customs Act, 1962 are only executionary and duty amounts cannot be redetermined in such proceedings. Assistant Commissioner has in order in original in para 12 has observed so.

4.7 In case of Mafatlal Industries Ltd [1997 (89) ELT 247 (SC)] a constitutional bench of nine judges held as follows:

“70. Re : (II) :We may now consider a situation where a manufacturer pays a duty unquestioningly – or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasize that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of mis­construction, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17(1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well-accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law.

So long as that order stands, the duty cannot be recovered back nor can any claim for its refund be entertained…..

……

99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.

(iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person’s case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person’s case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund.

4.8 Hon’ble Supreme Court (Three Judges Bench) has in case of I.T.C [2019 (368) E.L.T. 216 (S.C.)] has observed as follows:

“38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that “in pursuance of an order of assessment” has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment as observed by this Court in Escorts Ltd. v. Union of India & Ors. (supra).

39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. – 2000 (120) E.L.T. 285 (S.C.) = (2000) 6 SCC 650, the question which came up for consideration before this Court was non-challenge of an appealable order where the adjudicating authority had passed an order which is appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed :

“10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view was taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that whereas a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised.”

(emphasis supplied)

40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) – 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus :

“6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order.

7. We also see no substance in the contention that provision for a period of limitation indicates that a refund claim could be filed without filing an appeal. Even under Section 11 under the Excise Act, the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)’s case (supra), that in the absence of an appeal having been filed no refund claim could be made.

8. The words “in pursuance of an order of assessment” only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained.”

(emphasis supplied)

41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise.

42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder :

“128. Appeals to [Commissioner (Appeals)]. — (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order :

[Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.]

[(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing :

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]

(2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf.”

43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression ‘Any person’ is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re­assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against “any order” which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra).

44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India – 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra).

45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India – 2008 (12) S.T.R. 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act.

46. The decision in Intext Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128.

47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act.”

4.9 Hon’ble Supreme Court has in case of Standard Consultants [2022 (381) E.L.T. 582 (S.C.)] observed as follows:-

Civil Appeal No(s). 3344-3345/2017 and Civil Appeal No(s). 3346-3348/2017

4. The order(s) of self-assessment was admittedly not assailed by the respondent(s)-assessee(s) and subsequently, only refund application(s) was filed, which has been allowed by the Customs, Excise & Service Tax Appellate Tribunal, Regional Bench at Hyderabad (the ‘Tribunal’) vide impugned order(s). Such claim(s) for refund is not maintainable as held by this Court in ITC Ltd. v. Commissioner of Central Excise, Kolkata IV reported in 2019 (17) SCC 46 = 2019 (368) E.L.T. 216 (S.C.).

4.10 Hon’ble Karnataka High Court has in case of TTK [2021 (376) E.L.T. 441 (Kar)] held as follows:-

6. In view of the aforesaid enunciation of law, it is evident that a person is not entitled to claim refund of duty without challenging an order of assessment. In the facts of the case, there is no material placed on record to show that there is any challenge made to the assessment order. Therefore, the order passed by the Tribunal is in contravention of the law laid down by the Supreme Court in the case of ITC Limited (supra) and therefore, the same cannot be sustained in the eye of law.

4.11 Thus I do not find that the refund claim filed by the appellant without any challenge to the two letters determining the duty payable in terms of Section 125 (2) is maintainable, till the time assessment made in the said letters is set aside by the appropriate appellate authority.

5.1 Appeal is dismissed.

(Pronounced in open court on )