Page 219 - ELT_1st July 2020_Vol 373_Part 1

2020 ] ANANT B. TIMBADIA & CO. v. COMMISSIONER OF CUSTOMS (EXPORT), MUMBAI 129

Customs and this shows that the amount was paid by the Appellants on his own
account and not on behalf of Kunal Overseas Ltd. Per contra Learned Authorised
Representative reiterated the findings recorded in the impugned order. He also
refers to the finding of this Tribunal in the earlier round of Appeal which was
filed by Revenue in the year 2002, in which this Tribunal while upholding the
Order-in-Original, dated 18-4-2001 passed by the Commissioner, held that the
contention of the Revenue that the Commissioner should not have directed suo motu re-
fund of money deposited by co-noticees during investigation is also required to be rejected
for the reason that refund has been directed only of the amounts 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. According to Learned Authorised Representa-
tive the letter dated 8-10-2007 written by Mr. A.M. Timbadia to DRI stating that
this amount is voluntary paid towards payment of duties for the import made by M/s.
Kunal Overseas Ltd. against High Sea purchase made from us, itself established that
the amount has not been paid by the Appellant on their own account.
4. I have gone through the letter dated 8-10-2007 written by A.M. Tim-
badia to the DRI wherein it has been specifically mentioned that the amount was
paid voluntarily towards payment of duties for the import made by M/s. Kunal
Overseas Ltd. against High Sea Purchases made from the Appellant. In their bal-
ance-sheets although this amount of Rs. 20 lacs has been shown in the Assets side
against the heading deposited with Customs but from that it can’t be established
that the aforesaid amount was paid by them on their own account, which was
the specific wordings of the Commissioner while ordering for refund of the
amount of co-noticees vide Order-in-Original, dated 18-4-2001 and the same at-
tained finality also. Although it is the case of the Appellants that the said amount
has been paid by them under duress but it has nowhere mentioned in the letter
dated 8-10-2007 or in any other communication by the Appellant to the Depart-
ment nor any other communication which substantiate the argument of duress
has been brought on record. It has been vehemently argued on behalf of the Ap-
pellant that the aforesaid amount has been paid by the Appellant from their own
account, but the wordings of the order dated 18-4-2001 are on their own account.
There is a big difference between the meaning of the words from their own account
and on their own account. The Appellant has to establish that the amount has been
paid by them on their own account which they failed to establish through any of
the documentary evidence produced by them. It is true that the revenue, in the
Appeal filed by M/s. Kunal Overseas Ltd. before this Tribunal against the Order-
in-Original, dated 18-4-2001 opposed its request to reduce the pre-deposit
amount by the amount of Rs. 20 lacs paid by the Appellants herein, but that does
not mean that it is the stand of the Revenue or that it has been pleaded by the
Revenue that the aforesaid amount of Rs. 20 lacs was paid by the Appellant here-
in on its own account and not on account of the importer. The Appellant has to
stand on its own legs and establish that they have paid the aforesaid amount of
Rs. 20 lacs on their own account, which they failed to establish.
5. In view of the above, I find no merit in the Appeal filed by the Ap-
pellant and the same is accordingly dismissed.
(Order pronounced in the open Court on 6-2-2020)
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EXCISE LAW TIMES  1st July 2020  219