M/S Surya Exim Limited vs Commissioner Of Customs

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. H.K. Thakur, Hon.ble Member (Technical)

Date of Hearing / Decision : 12/6/2015

ORDER No. A/10802-10803/2015 dtd 12/6/2015

Per : Mr. H K Thakur;

These appeals has been filed by the appellant with respect to Order No 201-202/2014CUS/Commr(A)/Ahd dated 9.5.2014. The issue involved before the First Appellate authority was whether certain refund on account of payment of SAD was admissible to the appellant or not. The First Appellant Authority decided the issue in favour of the appellant and also held that interest on delayed refund cannot be allowed under Notification No 102/2007/Cus as decided by CESTAT, Delhi, in the case of Global International Vs CCE, Kanpur, 2013(292)ELT.102(Tri.Del.).

2. Shri S Suriyanarayanan, Advocate, appearing on behalf of the appellant relied upon the judgement of Honble Madras High Court in the case of KSJ Metal Impex (P) Ltd vs 2013(294)ELT.211 (MAD) and argued that refund under Notfn. No 102/2007 and CBEC Circular No 6/2008-CUS dated 28.4.2008 have to be seen in the light of Section 27 of the customs Act 1962 and that interest is payable.

3. Shri L Patra, Authorised Representative, appearing on behalf of the Revenue, argued that as per another judgement of Madras High Court in the case of Shakun Overseas Ltd Vs CCE(Appeals), Chennai [2013(297)ELT.14 (Mad)]. Interest has to be calculated only after a period of 3 months from the date of order passed by an Appellate Authority. It was also his case that original Adjudicating Authority has not rejected the claim of the appellant with respect to payment of interest. On a specific query from the Bench, Learned Advocate appearing on behalf of the appellant submitted that they have not claimed interest on delayed payment of refund before the Adjudicating Authority.

4. Heard both sides and perused the case records. It is observed from the case records that Commissioner (appeals) has rejected claim of the appellant with respect to interest on delayed payment of refund as per CESTAT judgement in the case of Global International Vs CCE, Kanpur (Supra). This judgement was delivered on 16.6.2012 whereas Madras High Court in the case of KSJ Metal Impex P Ltd vs Under Secretary (Supra) delivered on 21.1.2013 held that the refund under Notification No 102/2007 has to be treated as a refund under Section 27 of the customs Act 1962. The Learned Authorised Representative appearing on behalf of the Revenue, relied upon another order passed by Madras High Court in the case of Shakun Overseas Ltd Vs CCA (Appeals), Chennai (Supra). It is observed from the case records that the Adjudicating Authority while deciding the refund claim of the appellant under OIO dated 13.9.2013 and 9.10.2013 has not passed any order with respect to claim of interest on the delayed payment of refund. Under such circumstances order, with respect to interest on the payment of refund, passed by the First Appellate Authority is set aside and the matter is remanded to the Adjudicating Authority to decide the claim of the appellant with respect to interest on delayed payment in the light of judgements relied upon by the appellant and the Revenue, during the course of hearing. The appeals filed by the appellant are allowed by way of demand to the Adjudicating Authority. Needless to say that the Adjudicating Authority shall give an opportunity of personal hearing to the appellant before deciding the case in remand proceedings.

(Dictated and pronounced in the Court)

(H.K. Thakur) Member (Technical)

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