Customs, Kolkata Vs. M/S. B. Arun Kumar & Company  INSC 1808 (22
JURISDICTION CIVIL APPEAL NO. 6223 OF 2008 (Arising out of S.L.P.(C)
No.26139/2008) (CC No.625/2008) Commissioner of Customs, Kolkata
...Appellant(s) Versus M/s. B. Arun Kumar & Company & Ors.
...Respondent(s) ORDER Delay condoned.
Order dated 30th October, 1986, redemption fine of Rs.85 lakhs and penalty of
Rs.15 lakhs came to be imposed. Against the said order, the assessee
(respondent herein) filed an appeal before CEGAT. The Revenue also moved cross
appeal/cross objection before the Tribunal. Pursuant to the Commissioner's
order, the assessee deposited Rs.45,59,733/- in cash. For the balance amount,
bank guarantee was furnished.
On 30th April, 1990,
the Tribunal passed Order No.154-Cal/1990-154 allowing the assessee's appeal.
By the said order, Revenue was directed to refund the redemption fine and
penalty within thirty days and in default the Department was liable to pay
interest at the rate of 12%. We quote hereinbelow the operative part of the
order passed by the Tribunal, which reads as under:
1 "In the
result, the appeal of M/s. B.Arun Kumar & Co., Bombay, succeeds. The
impugned order passed by the learned Collector dated 31.10.86 is hereby set
aside. We hereby direct the respondents to refund the redemption fine and
penalty paid by the Appellants in terms of the above-said order within a period
of one month from the date of receipt of this order. In the event of the
Respondent's not refunding the amounts within the above-said period of one
month the same shall carry interests @ 12% per annum from the expiry of the
above period. We also direct the Registry to transfer the cross Objection to
the Special Bench, CEGAT, Delhi, for disposal in accordance with law along a
copy of this order."
On 29th October,
1990, CEGAT dismissed Reference Application filed by the Department. It refused
to refer certain questions arising in the matter to the High Court. Thereafter,
on the Revenue's Application (marked as Matter No.1104/1991), the Calcutta High
Court made the rule absolute on two questions which are as under:
"1. Whether on
the facts and in the circumstances of the case, the Tribunal was right in law
in setting aside the order of Collector dated 31st October 1986 and directing
the refund with interest?
2. Whether, on the
facts and in the circumstances of the case, the Tribunal was right in law in
transferring the cross-objection to be decided by the Special Branch of the
By minutes of the
Order dated 17th June, 1991, CEGAT was directed by the High Court to submit
"Statement of Case" within three months.
By Order dated 21st August,
1991, CEGAT stayed its order dated 30th April, 1990 for refund of redemption
fine and penalty with interest till disposal of the Reference by the High
The assessee herein
requested for refund of the amounts deposited by it vide letter dated 23rd
October, 1999, which was surprisingly granted by the Department on 11th July,
2000 even when the Reference was pending in the High Court. No appeal was filed
by the Department against the grant of refund of Rs.45,59,733/-. The assessee
received the said amount of Rs.45,59,733/-.
assessee moved an application before the Tribunal (marked as MA-193/02)
claiming interest on the principal amount refunded to it on 11th July, 2000.
This application was disposed of by the Tribunal vide order dated 19th
December, 2002 by which the Commissioner was directed to decide on the
application for interest as calculated and claimed by the assessee. The
Commissioner rejected the claim for interest vide order dated 12th May, 2003.
This order was challenged by the assessee by filing Writ Petition No.12027(W)
of 2003. The Writ Petition was allowed by the learned Single Judge which stood
confirmed by the Division Bench vide impugned judgment. Hence, this Civil
Appeal by the Department.
On 19th August, 2008,
this Court passed the following order:
orders, we are directing the respondent herein, M/s. B.Arun Kumar & Co., to
deposit in this Court Rs.45,00,000/- (Rupees forty five lakhs) together with
interest at nine per cent per annum from 11th July, 2000 till the date of
deposit, within eight weeks.
Office is directed to
list the matter immediately on Board on deposit of the said amount. Matter to
be listed on non-miscellaneous day. This Court will pass further direction only
on such deposit. The Department has filed a further affidavit today. That
affidavit may be taken on record. Liberty is granted to the assessee to file
its counter, if so advised, within three weeks."
order came to be passed because the status of the pending Reference Application
was not known. It is only in the course of enquiry made during the pendency of
this Civil Appeal that we have now come to know that the Department's
Application (marked as Matter No.1104/1991) was made absolute on 17th June,
1991 as stated above. Therefore, even today, as can be seen from the order
dated 17th June, 1991, the Department's Reference is still pending before the
High Court. In fact, by order dated 21st August, 1991, the Tribunal had, inter
alia, stayed the order of refund dated 30th April, 1990 till disposal of the
Reference by the High Court. It is in these circumstances that we had directed
respondent-assessee herein to deposit in the Registry of this Court
Rs.45,00,000/- together with interest at 9% interest from 11th July, 2000
(being the date on which the respondent-assessee received Rs.45,00,000/-).
respondent-assessee has complied with the directions of this Court contained in
the order dated 19th August, 2008. The assessee has deposited a sum of
Rs.79,36,058.52 vide Demand Drafts favouring the Deputy Registrar
(Administration), Supreme Court of India, as indicated in its affidavit dated
11th October, 2008 (see page 88 of the paper book).
In the above
circumstances, without expressing any opinion on the merits of the case, we
issue the following directions:
a) The Tribunal is
directed to forward the Statement of Case in the pending Reference (marked as
Matter No.1104/1991) within a period of twelve weeks. In this connection, we
direct the Department to submit its draft Statement of Case before the Tribunal
within six weeks before the Tribunal.
b) On receipt of the
draft Statement of Case within six weeks, the Tribunal will take steps to
forward the Statement of Case to the High Court.
Since the matter is
pending from 1991, we request the High Court to expeditiously decide the said
Reference within three months from the receipt of the Statement of Case.
c) We direct the
Registry of this Court to transfer the said amount of Rs.79,36,058.52 to the
Registrar (Original Side), Kolkata High Court within four weeks.
d) The Registrar
(Original Side), Kolkata High Court is directed to invest the said sum in fixed
deposit of a Nationalized Bank on such terms and conditions as he deems fit. If
the Department wants the amount to be withdrawn, it will make an application to
the Kolkata High Court for appropriate directions.
e) All contentions on
both sides are expressly kept open.
Subject to above,
Civil Appeal filed by the Department stands disposed of subject to respondent
paying Rs.25,000/- as costs condition precedent.
(B. SUDERSHAN REDDY)
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