Page 139 - ELT_1st August 2020_Vol 373_Part 3

2020 ] SONY PICTURES NETWORKS INDIA PVT. LTD. v. UNION OF INDIA 321

per classification 8528 and 8525.20 under protest. It was indicated in Ext.P4 that
the payment is made under protest being the differential duty payable. The peti-
tioner had also preferred an appeal against the order dated 22-5-2001 which was
pending before the Commissioner of Central Excise and Customs (Appeals), Co-
chin. The appeal was decided against the petitioner. Petitioner preferred an ap-
peal before the Customs, Excise and Service Tax Appellate Tribunal as Appeal
No. C/492/2002. The Tribunal allowed the appeal holding that the goods im-
ported by the petitioner are correctly classified under Heading 8525.20 of the
Customs Tariff. Tribunal’s decision was challenged by the respondent before the
Supreme Court as Civil Appeal No. 5484/2003 [2015 (322) E.L.T. 421 (S.C.)],
which was dismissed as per order dated 28-7-2015. While dismissing the Civil
Appeal, Supreme Court by its order dated 28-7-2015 directed that the excise duty
paid by the respondent (petitioner herein), if any, shall be refunded in accord-
ance with law. According to the petitioner, though there is no necessity to submit
a separate application seeking refund of the amount, still, he filed an application
seeking for refund with interest. However, without processing the said applica-
tion, petitioner was served with a show cause notice as Ext. P3. In the show cause
notice, the petitioner was called upon to produce various documents and it was
indicated that the documents were required for verifying the unjust enrichment
part and for processing the refund claimed. Petitioner made available the copies
of the documents and informed that most of the original documents are not
available in their file as they were lost during a flood. However, it was men-
tioned that it was the obligation of the department to refund the amount even
without a formal application. Since, nothing was done in the matter during the
interregnum, this writ petition is filed seeking the aforesaid reliefs.
3. Counter-affidavit has been filed on behalf of the respondents inter
alia stating that when the Supreme Court had directed that the excess duty paid
has to be refunded in accordance with law, in order to comply with the said di-
rection, show cause notice had been issued. There was no reason for the petition-
er to have approached this Court and the 3rd respondent would have passed
appropriate orders within a reasonable time. However, on account of the pen-
dency of the above writ petition, no order has been passed in the matter.
4. The main contention urged by the petitioner is that the amount de-
posited was a pre-deposit in terms of Section 129E of the Customs Act and in
terms of Section 129EE, there is an obligation on the part of the department to
refund the pre-deposit if the case is decided in favour of the petitioner. It is sub-
mitted that there is non-compliance of the said statutory provisions. Further,
Learned Counsel for the petitioner also places reliance on the judgment of the
Bombay High Court in Suvidhe Ltd. v. Union of India [1996 (82) E.L.T. 177] where-
in Bombay High Court after referring to the various circulars issued by the Board
observed that with reference to the Central Excises and Salt Act, 1944, the
amount deposited under Section 35F has to be refunded when the appeal is al-
lowed with consequential reliefs and the doctrine of unjust enrichment has no
application to such deposit. The said judgment had been approved by the Apex
Court in U.O.I. v. Suvidhe Ltd. [1997 (94) E.L.T. A159 (S.C.)]. Reference is also
made to the judgment of this Court in Commissioner of Customs, Kochi v. Shree
Simandar Enterprises [2012 (285) E.L.T. 328] wherein also this Court having con-
sidered the claim for refund of the penalty and fine directed the amount to be
refunded with 6% interest.
5. Be that as it may, it is not in dispute that the amount had been depos-
EXCISE LAW TIMES  1st August 2020  139