ORDER
P.S.Bajaj
1. This appeal has been filed by the appellants against the order in appeal dated 1.2.2000 passed by the Commissioner of Customs (Appeals) vide which he had affirmed the order in original of the Assistant Commissioner dated 12.7.99 disallowing the interest on the refund amount.
2. The facts giving rise to this appeal may briefly be stated as under:
3. The appellants in the year 1987 imported a consignment of polystyrene resin in the form of moulding power and cleared the goods through Calcutta Port Vide Bill of Entry No.I-1600 dated 9.9.87. For payment of C.V.duty the benefit of Notification No.133/86-CE dated 1.3.87 as amended vide Notification No.89/87-CE dated 1.3.87 was sought by them but the same was denied by the Customs authorities on the ground that the goods were not covered by that notification. Accordingly, the Bill of Entry was amended and C.V.duty was charged at the rate of 40% instead of 20% as as pleaded by the appellants. The appellants, however, made the payment and got the goods released. But, thereafter they filed claim for the refund of Rs.1,30, 188/- with the Assistant Commissioner of Customs who in turn issued them show cause notice dated 8.4.94 as to why the refund amount be not credited to Consumers Welfare fund. After getting the reply from the appellants wherein they alleged that no part of the Customs duty had been collected by them form the customers as the goods had been used/consumed in the factory and not sold in the market, the Assistant Commissioner thereafter sanctioned the refund claim vide order dated 7.4.94 but credited the amount to Consumers Welfare Fund. This order of The Assistant Commissioner was later on set aside by the Commissioner (Appeals) who later on set aside by the Commissioner was later on set aside by the Commissioner was later on set aside by the Commissioner (Appeals) who directed de novo consideration. The Assistant Commissioner again, however, vide order dated 16.5.95 allowed the refund with a direction that the refund amount be credited to the Consumers Welfare Fund. That order of the Assistant Commissioner was then confirmed by the Commissioner (Appeals) by rejecting the appeal of the appellants. The Tribunal, however set aside the order of the Commissioner (Appeals) vide order dated 9.2.98 and directed the payment of the refund amount to the appellants.
4. After the passing of the order by the Tribunal the Assistant Commissioner refunded the duty amount to the appellants but did not allow any interest thereon vide order dated 25.32.99. Again the appellants submitted a letter dated 29.3.99 before the Assistant Commissioner for payment of interest but the same was also rejected vide order dated 12.7.99. This order of the Assistant Commissioner dated 12.7.99 was affirmed by the Commissioner (Appeals) through the impugned order in appeal.
5. The learned counsel for the appellants has contended that the appellants are legally entitled to claim interest on the delayed payment but it had been wrongly disallowed by the Commissioner (Appeals) and as such the impugned order deserves to be set aside.
6. On the other hand, the learned SDR has contended that the refund claim of the appellants was sanctioned within three months from the date of submission of the complete documents and as such interest had been rightly disallowed to them.
7. I have heard both the sides and gone through the record.
8. The bare perusal of the impugned order in appeal shows that the refund claim of the appellants was firstly rejected by the Assistant Commissioner vide order dated 7.4.94 for non-submission of complete evidence. This order was, however, set aside by the Commissioner (Appeals) and the matter was went back for de novo consideration to the Assistant Commissioner. The Assistant Commissioner again rejected the refund claim vide order dated 16.5.95 for non-submission of the proper documents and this order of the Assistant Commissioner was affirmed by the Commissioner (Appeals) vide order dated 30.8.96. The Tribunal, however, set aside the order of the Commissioner (Appeals) and allowed the refund claim of the appellants vide order dated 9.2.98.
9. Thereafter, the appellants alongwith the order of the Tribunal filed the refund claim and the Assistant Commissioner directed them to furnish the non-availment of modvat benefit vide officer letter dated 11.11.98. They requisite certificate was produced by them only on 21.12.98 and refund was sanctioned on 6.1.99 by the Assistant Commissioner.
10. From the resume of above facts which had bee detailed in the order in appeal by the Commissioner (Appeals), it is quite evident that the delay in allowing the refund claim after passing the order of the Tribunal took place due to the non-submission of the requisite documents by the appellants regarding the non-availment of modvat benefit from the competent authority in time. They filed the documents only on 21.12.98 and their refund claim was sanctioned on 6.1.99. The refund order was issued on 25.2.99. Their Claim was thus decided within three months and as such no interest could be legally allowed to them under Section 27-A of the Customs Act. Therefore, the impugned order passed the Commissioner (Appeals) confirming the order of the Assistant Commissioner disallowing interest on the refund claim to the appellants on the refundable amount is prefectly valid and does not suffer from any legal infirmity.
11. Apart from this, even the perusal of the impugned order in appeal shows that the claim for interest was rejected by the Assistant Commissioner vide order dated 25.2.99 when application for refund was made before him, on the basis of the order of the Tribunal dated 9.2.98. That order of the Assistant Commissioner was never challenged in appeal before the Commissioner in appeal before the Commissioner (Appeals) and thus had become final. No doubt, thereafter the appellants again vide letter dated 29.3.99 requested the Assistant Commissioner for payment of interest and the Assistant Commissioner disallowed their request vide his order dated 12.7.99. But that second order of the Assistant Commissioner did not give them any fresh cause of action for filing the appeal. The appeal filed by them against that order dated 12.7.99 even could be dismissed by the Commissioner (Appeals) being not maintainable, as they failed to challenge the first order dated 25.2.99 of the Assistant Commissioner disallowing them interest. This aspect was, however, not gone into by the Commissioner (Appeals) while rejecting the appeal of the appellants but the facts are quite apparent from the record. That order dated 25.2.99 passed by the Assistant Commissioner disallowing interest was required to be challenged by the appellants and no appeal against subsequent order of the Assistant Commissioner dated 12.7.99 passed on the letter of the appellants regarding rejection of their claim for interest could be filed before the Commissioner (Appeals). Having once accepted the order dated 25.2.99 by not challenging the same before the higher forum, the appellants were legally estopped from laying claim for the interest on the delayed payment before the Commissioner (Appeals).
12. In view of the discussion made above, there is no merit in the appeal of the appellants and the same is ordered to be dismissed.