Decided on June 23,2015

Wind World India Ltd. Appellant
Commissioner Of Customs (Imp.), Mumbai -Ii Respondents


ANIL CHOUDHARY,J - (1.)THE appellant is in appeal against Order -in -Appeal No. 132(CRC)/2008(JNCH), dated 31 -3 -2008 passed by the Commissioner of Customs (Appeals), Mumbai -II by which the Order -in -Original was upheld rejecting the refund of excess amount of interest paid by the appellant by mistake.
(2.)The brief facts are that the appellant imported capital goods valued at Rs. 2,87,67,110/ - for manufacture of Parts of Wind Operated Electricity Generators against EPCG License dated 23 -6 -2000. The duty forgone for such import was Rs. 1,41,91,098/ -. The FOB value for the License was Rs. 29,74,93,020/ -. As further imports were not made, the appellant approached the DGFT for finalization of the export obligation, against the said license. Accordingly, the DGFT vide letter dated 9 -12 -2004 directed the appellant to pay customs duty with interest for the shortfall of export obligation. The appellant calculated the interest payable @ 24% instead of 15% as provided in para 5.14 of Handbook of Procedures and thus, they have deposited an excess amount of Rs. 11,97,763/ -. The appellant made an application for refund of amount of excess interest paid, on the duty, but the same was not disbursed and credited to the Consumer Welfare Fund in absence of any audited or authentic documents as held by the adjudicating authority, vide Order -in -Original 24 -7 -2007.
1.1 Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals). In spite of 4 days being granted for hearing, the appellant could not appear and vide ex parte order, the Commissioner (Appeals) after going through the written submissions, has recorded the finding that the appellant have relied upon the ruling of the Tribunal in the case of Rupesh Chemicals -, 2006 (146) E.L.T. 164 (Tri -Bang) (sic), wherein it has been held that the excess payment due to arithmetical error was not to be considered as duty and that unjust enrichment provision will not be applicable. The learned Commissioner further observed that in the present case, amount claimed as refund, was not the result of a simple arithmetical error but had arisen due to application of wrong rates while computing the interest amount. It was further observed that the case of Rupesh Chemical (supra) is not applicable in the facts of the instant case. It was further held that in the Order -in -Original, the original adjudicating authority relied upon the case of Eltech Enterprises - : 1999 (112) E.L.T. 877 (Tri -Mum), wherein this Tribunal has held that Chartered Accountants Certificate could not be automatically accepted if it was not supported by relevant Sales Bills or related documents. The learned Commissioner (Appeals) also observed that the appellant had not produced any other authenticated documents such as audited Balance Sheet or Profit & Loss Account, showing the excess amount paid by them as "recoverable or receivable".

Being aggrieved, the appellant is in appeal before this Tribunal.

(3.)THE learned Counsel for the appellant urges that during the pendency before the Commissioner (Appeals) and before the adjudicating authority, there was ongoing dispute between majority and minority share holder. The matter was pending before Company Law Board in C.A. No. 484/2007 and the balance sheet could not be finalized due to interim order of the Company Law Board. The learned Counsel further filed a copy of the order -sheet dated 7 -1 -2008 of Company Law Board wherein the Company Law Board has recorded that "terms of compromise are being settled and as such parties seek time for report", and accordingly, the Company Law Board was pleased to allow time observing that till further orders, no AGM of the company is to be held. Further, the learned Counsel have filed a copy of the audited Balance sheet as on 31 -3 -2007 wherein under the Head Loan & Advances head an amount of Rs. 11,97,763/ - has been shown as recoverable from the Customs on account of additional/excess interest paid. The appellant have also filed a certificate of C.A. dated 17 -1 -2014 certifying that the said amount is outstanding, shown as recoverable from the Customs Department and the amount is included under Head Deposit with others in 2006 -07 financial year and date of the balance -sheet as on 31 -3 -2007.
3.1. The learned Counsel further draws attention to the certificate of the C.A. dated 22 -5 -2007, Exhibit D in the appeal filed, wherein it has been certified that an amount of Rs. 11,97,763/ - stands as recoverable from Office of the Commissioner of Customs (Exp.), JNCH, further, certifying that the certificate is issued on basis of the records made available to the C.A. It is further urged by the learned Counsel that in view of the settled law, the excess payment of interest does not form part of duty and as such, the provision of unjust enrichment is not attracted. As such, he prays for allowing the appeal.


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