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Judgment
Appeal has been filed against Order-in-Appeal No.CC(A)Cus/ICD/42/2009 dated 23.2.2009 which upheld the Order- in-Original dated 28.11.2008
in term of which the appellant's refund claim of Rs.158,21,959/- seeking refund of interest paid by them had been rejected.
The appellant had imported certain goods and filed several Bills of Entry in respect thereof in the month of July, 2001. On the basis of intelligence
that the goods imported by them under those Bills of Entry were misdeclared and that the appellant had earlier also imported similar goods by indulging
is misdeclaration, goods covered by the Bills of Entry filed in July, 2001 (30.7.2001 and 31.7.2001) as also those lying in godown were seized as they
were found to be misdeclared. The case was eventually adjudicated by Commissioner of Customs ICD, TKD vide Order-in-Original dated 30.6.2003.
The appellant filed appeal against the said Order-in-Original and the Tribunal stayed the operation thereof. The stay was vacated on 13.5.2005. The
appellant filed appeal before High Court but no stay was granted. The goods were released after the appellant deposited the customs duty, redemption
fine, penalty and interest on delayed payment of duty in the wake of the Order-in-Original dated 30.6.2003.
The appellant submitted the impugned refund claim on the ground that it was asked to pay interest on delayed payment of duty under Section 28AA
of the Customs Act, 1962 with effect from 29.9.2003 i.e. three months after the date of passing of the Order-in-Original whereas the Department
started processing Bills of Entry in year 2005 and therefore, the interest should not have been demanded and recovered before finalizing Bills of Entry
in the year 2005.
During the hearing, the appellant reiterated the same contention.
we have considered the appellant's contentions and the facts and circumstances of the case. The primary authority in the impugned order has
clearly noted as under:
I find that the party has filed the refund claim on 28.2.2008 and as per party's own submission, the amount of interest was paid on dates -
0312.07, 27.2.07, 27.9.06, 28.9.06, 03.10.06, 28.9.05, 01.9.06, 10.6.05, 4.9.06, 24.11.06, 26.12.06 & 09.03.07. As such, the claim of
refund except for the first and last payment of interest are barred by time in terms of Section 27 of Customs Act, 1962, and which is liable to
be rejected on this ground itself.â€
We find that in the ground of appeal, this finding of the adjudicating authority has not been contested or rebutted.
Further Section 28AA of the Customs reads as under:
SECTION 28AA, Interest on delayed payment of duty. -
(1) Notwithstanding anything contained in any judgment, decree, order or direction of any court, Appellate Tribunal or any authority or in any other
provision of this Act or the rules made thereunder, the person, who is liable to pay duty in accordance with the provisions of section 28 shall, in
addition to such duty, be liable to pay interest, if any, at the rate fixed under sub-section (2), whether such payment is made voluntarily or after
determination of the duty under that section.
From the aforesaid Section, it is clear that the interest becomes chargeable after three months from the date of determination of duty chargeable. It is
evident that the determination of duty chargeable happened on the date (30.6.2003) of Order-in-Original. Therefore, charging of interest w.e.f.
29.9.2003 is clearly in conformity with the provision of said Section 28AA. Grant of stay by the CESTAT against the operation of said Order-in-
Original and the vacation thereof subsequently do not in any way alter the date of determination of duty chargeable which remained the date of the
adjudication order. Incidentally, in the impugned Order-in-Appeal, the Commissioner (Appeals) goes to the extent of assert is that in terms of Section
28AB ibid interest was to be charged from the date of seizure in the year 2001. However, this observation is not relevant for the issue at hand.
In the light of the foregoing, we find no merit in the appeal and the same is, therefore, dismissed.