ORDER
G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the assessee with reference to the letter dtd. 25.6.2002 issued by the Commissioner of Customs, Custom House, Panamboor, Mangalore. The relevant portion of the letter is as follows:
“As per our records, when you filed refund application during February 1993, only a photocopy of the concerned Bill of Entry had been submitted a long with refund claim. The claim was initially rejected, as the Port Weighment Certificate was not considered as authentic proof for shortage and granting refund. The CEGAT has decided your appeal vide Order No. 756/99 dtd. 9,4.99. As per Customs Refund Application (Form) Regulation 1995, Original Triplicate copy of Bill of Entry is essential for granting Refund. You have submitted Original Triplicate copy of B/E on 15.11.2000 and Modvat details on 10.1.2001. There is no delay in granting refund after submission of essential documents. As requested by you vide your letter dtd. 9.3.2002 copy of Notification No. 15/2000-NT dtd. 1.3.2000 is enclosed herewith.”
2. At the outset, Shri Narasimha Murthy raised a preliminary objection on the ground that the letter dtd. 25.6.2002 is not an appealable order. He pointed out that the Assistant Commissioner has passed an order as early as on 13.12.2001 and the said order was appealable but no appeal has been filed against the said order. The relevant order passed by the Assistant Commissioner is as follows:
” Please refer to your letter Ref. No. SCL:02.02/1005/:06/621 dtd. 15.11.2001 on the above subject.”
In this regard, it is to inform you that the refund has been granted to you on furnishing of required essential documents as per CEGAT Order No. 756/99 dtd. 9.4.99. The documents were submitted by you on 10.1.2001 and the refund was granted on the same day after adjusting the amount due from you including interest payable upto 10.1.2001. However, there is an excess collection of interest @ 24% p.a. with effect from 28.1.99, wherein actual interest payable is detailed below:
Date of determination of demand : 28.1.97
Amount Confirmed : Rs. 43,720
Date of adjustment refund-demand : 10.1.2001
(1) Interest chargeable @ 20% per annum w.e.f = Rs. 26,999
28.1.97 to 29.2.2000 (3 years and 32 days) for 1127
days
(2) Interest chargeable @ 24% per annum w.e.f. = Rs. 9,055
1.3.2000 to 10.1.2001 (for 315 days)
Total Interest chargeable = Rs. 26,999
+ Rs. 9,055
= Rs. 36,054
Interest collected (adjusted) = Rs. 41,454
Excess collected = Rs. 5,400
There is an excess collection of Rs. 5,400. Hence you may submit pre-receipt for Rs. 5,400 and collect the refund cheque."
3. Shri Parameswaran appearing for the appellants submitted that since the Tribunal has passed an order an early as on 9.4.99 allowing the appeal with consequential relief, it was the duty of the department to grant refund within time as stipulated under Section 27A of the Customs Act. He read the relevant Section 27A, which is as under:
“Interest on delayed refunds — If any duty ordered to be refunded under Sub-section (2) of Section 27 to an applicant is not refunded within three months from the date of the receipt of application under Sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below ten percent and not exceeding thirty per cent per annum as is for the time being fixed by the Board, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty:
Provided that where any duty, ordered to be refunded under Sub-section (2) of Section 27 in respect of an application under Sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty.”
He said that since the refund has been granted only on 18.1.2001, the appellant claimed interest for the said amount, which was due from 9.4.99. Since this has been rejected by the Commissioner as per letter dtd. 25.6.2002, the letter should be construed as an order and accordingly party has filed an appeal against that order. He also referred to the decision of the Tribunal in the case of Infar (India) Ltd. v. CCE, New Delhi, 2003 (154) ELT 705 in support of his contention that party is entitled to refund of interest in terms of Section 27A of the Customs Act.
4. In support of the contention raised by the Department that no appeal lies against the letter, Shri Narasimha Murthy referred to the decision of the Supreme Court in the case of Commissioner of Customs and Central Excise v. M.P. Steel Corporation, 2003 (154) ELT 12(SC).
5. In this context, Shri Parameswaran pointed out that since the Assistant Commissioner has issued a letter dtd. 6.2.2002, in which it was clearly said that ‘the letter was issued with the approval of Commissioner of Customs, Mangalore’, the party had no other alternative but to have further correspondence with the Commissioner and ultimately, the Commissioner himself has issued a letter dtd. 25.6.2002 rejecting the claim.
6. I have carefully considered the matter. On going through the submissions made by both sides with reference to the facts and circumstances, particularly on perusal of the order dtd. 13.12.2001 passed by the Assistant Commissioner, I find lot of force in the arguments advanced on behalf of the Revenue that order dtd. 13.12.2001 is an appealable order. In this case, instead of filing an appeal against the said order, the party has chosen to enter into further correspondence with the Commissioner. He should have filed an appeal against the order passed by the Assistant Commissioner. Instead he has chosen to file an appeal against the letter issued by the Commissioner and in these circumstances, the said letter is not an appealable order. In the view I have taken, the appeal is dismissed as non-maintainable.