1 caw-2113.10--.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPLICATION NO. 2113 OF 2010 IN WRIT PETITION NO. 10582 OF 2009 Union of India and others. ... Applicants. V/s. M/s.GKN Sinter Metals Pvt.Ltd. .... Respondent. M.I.Sethna, Senior Advocate with J.B.Mishra for the applicants. S.N.Kantawala with Brijesh Pathak for the respondent. WITH CIVIL APPLICATION NO. 2114 OF 2010 IN WRIT PETITION NO. 10582 OF 2009 M/s.GKN Sinter Metals Pvt.Ltd. ... Applicants. V/s. Union of India and others. ... Respondents. S.N.Kantawala with Brijesh Pathak for the applicant. M.I.Sethna, Senior Advocate with J.B.Mishra for the respondents. 2 caw-2113.10--.sxw CORAM : V.C.DAGA AND R.M.SAVANT, JJ. DATED : 30th September 2010. P.C. : Perused civil applications and counter affidavits. Heard parties. BACKGROUND FACTS: 2. By substantive petition being Writ Petition No. 10582/2009, the question was raised by the petitioner as to whether the Customs Authority was justified in coercively collecting the customs duty demand with interest on the ground that the petitioner had not produced Export Obligation Discharge Certificate, especially, when the period of limitation to file appeal before the Customs, Excise and Service Tax Appellate Tribunal (“Tribunal” for short) against the adverse order of the Commissioner (Appeals) had not expired. The said question was dealt with by this Court by judgment dated 19th December, 2009, the issue was answered against the Revenue and in favour of the petitioner, wherein the Revenue was directed return the amount of Rs.2,85,47,277/- coercively collected from the petitioner with interest @ 6% per annum from the date of realization till payment. Accordingly, the amount of Rs. 2,85,47,277/- was refunded to the petitioner by the Revenue. 3 caw-2113.10--.sxw 3. Aggrieved by the aforesaid order, the Revenue and the petitioner both had filed S.L.Ps. in the Supreme Court bearing S.L.P.(C) No.9128/2010 and No.8358/2010 respectively. The petitioner withdrew the S.L.P. with liberty to approach this Court whereas the S.L.P. filed by the Revenue met with an order of dismissal. 4. In view of liberty granted in favour of the petitioner, the petitioner has moved Civil Application No. 2114/2010 seeking direction against the Revenue directing it to refund a sum of Rs.72,19,395/- along with interest thereon @ 6% per annum. At the same time, the Revenue has also moved Civil Application No.2113/2010 praying for modification of the order dated 19th December, 2009 with further prayer seeking direction against the petitioner to refund the excess amount of Rs.85,69,370/- which, according to the Revenue, were erroneously refunded in compliance with the judgment of this Court dated 19th December, 2009. 5. Both the applications were heard together since both were praying reliefs cutting each other. The parties are referred as per their original nomenclature for the sake of clarity. THE FACTS 6. The factual matrix depict that the two appeals filed by the petitioner before the Tribunal were against the order of the Commissioner (Appeals) involving recovery from the petitioner in the sum of Rs.74,89,295/- plus Rs.1,24,88,612/- constituting total of Rs.1,99,77,907/-. 4 caw-2113.10--.sxw The appeals were dismissed by the Tribunal. The petitioner was to prefer appeals against the orders of the Tribunal. Before expiry of appeal period Revenue Officers made coercive recovery from the petitioner in the sum of Rs. 1,99,77,907/-. According to the petitioner, the Revenue could not have coercively recovered the said dues from the petitioner since the appeal period had not expired. According to the petitioner, the Customs Officer came to the office of the petitioner and compelled them to part with two cheques one for Rs.1,99,77,907/- in two sets of appeals which were to be filed and another cheque for Rs. 1,57,88,765/- towards their recovery involved in four appeals which were already filed and pending before the Tribunal for consideration for interim stay of recovery. 7. It appears that after hearing the petitioner, this Court by its judgment and order dated 19th December, 2009 did not direct the Revenue to refund Rs.1,57,88,765/-. However, this Court found that the recovery of Rs. 1,99,77,907/- coercively made by the Revenue could not have been made before the expiry of appeal period. This Court, therefore, directed refund of the said amount of Rs. 1,99,77,907/- with interest constituting total amount of Rs.2,85,47,277/-. This figure was arrived at by this Court on the assumption that even the amount of interest arising out of two orders amounting to Rs.85,69,370/- (Rs.36,83,801 + Rs.48,85,569 = Rs.85,69,370) was also recovered by the Revenue. As such, Revenue was directed to refund Rs. 2,85,45,277 (i.e. Rs.1,99,77,907/- towards customs duty and Rs.85,69,370/- towards interest) to the petitioner. 5 caw-2113.10--.sxw 8. By the present application bearing No.2113 of 2010, the Revenue has brought to our notice that the recovery of Rs.1,99,77,907/- by one cheque and Rs. 1,57,88,765/- by another cheque did not include interest component on the outstanding customs duty liabilities. In this view of the matter, the refund of total sum of Rs. 2,85,47,277/- could not have been ordered by this Court, especially, when the amount of interest amounting to Rs.85,69,370/- accrued on the sum of Rs.1,99,77,907/- was never recovered by the Revenue from the petitioner. Consequently, the Revenue is now demanding refund of Rs. 85,69,370/- from the petitioner. The prayer of the Revenue made in this behalf was prima facie; found to be justified as such by an order dated 12th August, 2010 this Court was pleased to direct the petitioner to deposit with this Court, the said amount of Rs.85,69,370/-. Accordingly, the petitioner has deposited the said amount with this Court. Having heard the rival parties, the contention of the Revenue needs acceptance since they did not recover amount of interest they would be entitled to refund of that component. The Revenue would, therefore, be entitled to withdraw this amount of Rs.85,69,370/- lying in deposit with this Court. 9. Having said so, the civil application moved by the petitioner bearing No.2114/2009 seeking direction to the Revenue to refund amount of Rs.72,19,395/- is liable to be rejected since this Court had not directed refund of the amount of Rs.1,57,88,765/- constituting customs duty liability in respect of four appeals which were already 6 caw-2113.10--.sxw filed and the recovery thereunder from the petitioner, (may be by adopting coercive measures), was not found to be unjustified. The prayer of the petitioner for direction against the Revenue to refund Rs.72,19,395/- is based on the assumption that after adjusting Rs.85,69,370/-, the petitioner would be entitled to claim refund of the balance amount of Rs.72,19,395/- which would constitute return of Rs.1,57,88,765/-. The very premise or the assumption of the petitioner that on the basis of the judgment and order of this Court dated 19th December, 2009, the petitioner would be entitled to claim refund of Rs.1,57,88,765/- is erroneous. Consequently civil application moved by the petitioner is liable to be rejected. 10. In the result, Civil Application No.2113/2009, moved by the Revenue, is allowed. The registry is directed to refund the said amount of Rs.85,69,370/- to the Revenue by drawing payees account cheque in their favour. The Civil Application No.2114/2009, moved by the petitioner, is rejected. No order as to costs. (R.M.SAVANT, J.) (V.C.DAGA J.)