Page 140 - ELT_1st August 2020_Vol 373_Part 3

322 EXCISE LAW TIMES [ Vol. 373

ited by the petitioner under protest when the appeal was pending and when the
Tribunal passed the order allowing the appeal filed by the petitioner, there is an
obligation cast on the department to refund the amount. Learned Single Judge of
this Court in Commissioner of Customs, Cochin v. Shree Simandar Enterprises [2012
(283) E.L.T. 369 (Ker.)] had considered the scope and effect of Sections 129E and
129EE and it was held at paras 6 and 8 as under :-
“6. I have considered the rival contentions in detail. I am of the opinion
that the stand of the petitioner in the review petition is totally hyper-
technical and unreasonable. When an appellate authority allows an appeal
filed against imposition of tax, duty, fine, penalty etc., it is the bounden du-
ty of the assessing authority, as part of a democratic government, to refund
the amounts covered by orders of the appellate authority, when appeals are
allowed fully or partially. The same shall be refunded even without a for-
mal request for the same. Certainly, on a request made for refund, the same
shall be refunded immediately, failing which the assessing authority is
bound to pay interest on the amount from the date when the refund became
due. This position has been formally accepted by the Government of India
also based on the decisions of the High Courts and the Supreme Court as is
evident from Exts. P3 and P7. When by Ext. P3 and P7, the Government of
India themselves have reminded all the officers under them of the necessity
to make refunds consequent on appellate orders expeditiously, the peti-
tioner in the review petition cannot act as a super government, insisting on
documents, production of which is not mandated by any rule, order or cir-
cular.”
“8. Apart from the same, as I have already held, it is the cardinal duty of
assessing officers to implement appellate orders by refunding amounts al-
ready paid in accordance with the adjudication order, even without a re-
quest for the same, since the government cannot act like private parties in
the matter of payment of money due, when money is due to citizens from
the government. It is the duty of all government officers also to see that the
image of the government before the citizens is clean and in accordance with
basic principles of fair play. Even otherwise, occasionally, in appropriate
cases the officers of the government can be magnanimous also to improve
the image of the government before the public.”
That apart, the circular issued by the Board and relied upon by the
Learned Counsel for the petitioner, Circular No. 275/37/2K-CX.8A, dated 2-1-
2002, clearly indicates that the amount received under Section 35F has to be giv-
en as refund even without a formal application. The provisions under Section
129E is in pari materia with the provision under Section 35F.
6. Having regard to the overall factual and legal issues involved in the
matter, there cannot be any dispute that the petitioner is entitled for refund of the
aforesaid amount. The question of unlawful enrichment does not arise in the case
at all. This is a case in which amount had been deposited under protest during
the pendency of the appeal and the petitioner is entitled to refund.
In the said circumstances, this writ petition is allowed as under :-
(i) Ext. P3 is set aside.
(ii) There will be a direction to the 3rd respondent to pay the entire
amount due to the petitioner as refund with applicable interest
within a period of one month from the date of receipt of a copy of
this judgment.
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