Page 218 - ELT_1st July 2020_Vol 373_Part 1

128 EXCISE LAW TIMES [ Vol. 373

posing confiscation of goods cleared under the 11 Advance Licenses obtained by
M/s. Kunal Overseas Ltd. proposing recovery of duty of Rs. 9,74,52,797/- jointly
and severally from the noticees including the Appellant. The notice was adjudi-
cated by the Commissioner vide Order-in-Original, dated 18-4-2001 confirming
the demand and dropping of the proceedings against co-noticees including the
Appellant. Penalty of Rs. 10 crores was also imposed on M/s. Kunal Overseas
Ltd. and also on one Prakash Parekh jointly. It was also observed in the said or-
der that as a consequence of the dropping of the proceedings against co-noticees,
any amount that has been paid by them on their own account will have to be re-
funded but not that payment which was paid by them on account of importer.
Appeal against the aforesaid order was filed by Revenue along with Stay appli-
cation in which the Revenue sought stay of operation of the order insofar as it
relates to directing refund of Rs. 2,00,30,000/- paid by Shri V.K. Gandhi and of
Rs. 20,00,000/- paid by the Appellant. The aforesaid stay applications were dis-
missed by this Tribunal vide order dated 12-11-2002. The Appellant herein had
also filed a Misc. Application No. 2502/2005 in pending Appeals before the Tri-
bunal for issuance of direction to the Revenue to pay back Rs. 20 lacs with inter-
est @24%, but the same was rejected by the Tribunal vide order, dated 9-11-2005.
The Appeals filed by Revenue were also later on dismissed by this Tribunal vide
order dated 10-6-2008 and while dismissing the Appeals this Tribunal observed
that the contention of the Revenue that the Commissioner should not have di-
rected suo motu refund of money, deposited by co-noticees during investigation
is required to be rejected for the reason that refund has been directed only of the
amount paid by them on their own account and amounts paid by them on account
of the importer have been directed to be adjusted towards duty confirmed. The
said order of the Tribunal was further challenged by the Revenue before the
Hon’ble High Court of Judicature at Bombay and the Hon’ble High Court also
vide order, dated 5-1-2010 dismissed the Appeals filed by the Revenue in limine.
The Appellant filed the refund application for refund of the amount of Rs. 20 lacs
deposited by them during investigation alongwith the supporting documents.
The Refund claim was rejected by the Adjudicating Authority vide Order-in-
Original, dated 30-7-2010 mainly by relying upon the letter, dated 8-10-2007 of
A.M. Timbadia addressed to DRI in which it was stated that this amount is volun-
tary paid towards payment of duties for the import made by M/s. Kunal Overseas Ltd.
against High Sea purchase made from us. On Appeal filed by the Appellant, the
Commissioner (Appeals) vide Order-in-Appeal, dated 1-11-2012 rejected the re-
fund claim and upheld the Order-in-Original dated 30-7-2010.
3. I have heard Learned Counsel for the Appellant and Learned Au-
thorised Representative for the Revenue and perused the Appeal Memo as well
as the Written submissions filed by the respective sides. Learned Counsel sub-
mits that it has been clearly mentioned in the Order dated 18-4-2001 passed by
the Commissioner that any amount that has been paid by the co-noticees includ-
ing the Appellants, on their own account, will have to be refunded and since the
Appellants have deposited the amount of Rs. 20 lacs during the course of inves-
tigation under duress from their own account therefore they are entitle for the
refund of the aforesaid amount with interest. He further submits that they have
produced their account statement also before the authorities below including the
Balance-sheet which clearly shows the amount of Rs. 20 lacs as receivable from

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