GHAZIABAD SHIP BREAKERS Vs. COMMISSIONER OF CUSTOMS, JAMNAGAR

JUDGEMENT

(1.) THE appellants are engaged in the activity of ship breaking and they had filed 11 Bills of Entries in respect of ships imported for breaking and this issue has been the subject matter of the appeal and has seen several rounds of litigation with regard to assessment of the ships because of the dispute relating to duty liability on the fuel contained in the tanks and bunkers etc. The chronological history of the case is reproduced below which shows amount of litigation and how the matter has moved back and forth : -

(2.) LD . Advocate on behalf of the appellants submits that the appellants have deposited entire amount of Rs. 16,21,583/ - during September, October and November 2004. Consequent to which the appeal filed by them was restored and was decided on merits as per the directions of the Honble Supreme Court. Therefore, this amount is nothing but pre deposit and should have been refunded to them from the date of order of the Tribunal on 12 -3 -2006. However, Assistant Commissioner passed an order making final assessment under Section 18(2) of the Act and issued Order in Original dated 24 -4 -2006, wherein he found that the appellant had paid excess duty of Rs. 6,99,747/ - for which he ordered them to file refund claim under Section 27 of the Act, which has been upheld by Commissioner (Appeals) in the impugned order. He submits that the full amount was liable to be refunded since the Tribunal had remanded the matter on 13 -12 -2005 to the Original Adjudicating Authority and should have been refunded by 12 -3 -2006. The Assistant Commissioner passed the detailed final assessment and by ordering them to file refund claim, the interest which is liable to be paid from 12 -3 -2006 would not be available to the appellant if they file the refund claim.

(3.) WE find considerable force in the arguments advanced by the appellants. As pointed out by the appellants, once the order was set aside and the matter was remanded, the amount was refundable to the party and they had made request to the Assistant Commissioner in March 2006, but Assistant Commissioner passed the order of final assessment and required them to file refund claim. As pointed out by the ld. Advocate that the refund became due and was payable by 12 -3 -2006 since assessment order was set aside. Therefore, we allow the appeal upholding the stand taken by the appellant that they are eligible for interest from 12 -3 -2006. However, since the amount refundable has been worked out at only Rs. 6,99,747/ -, the interest is payable only on this amount from 12 -3 -2006. Appeal is allowed in above terms. (Pronounced in the Court)