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GEN/RFD/18/2023-REF-O/O PR COMMR-CUS-PREV-CHENNAI
I/1470587/2023
REFUNDS
CHENNAI III COMMISSIONERATE
NOTE
Sub: Para wise comments on W.P. No. 28419 /2023 filed by
M/s. MSC Agency- reg.
*****
With reference to the above subject, the brief facts and Para wise
comments on the appeal filed by M/s. MSC Agency is as follows:
M/s. MSC Agency had sent a letter dated 3.5.2023 asking the
department to refund the pre-deposit amount of Rs.45 lakhs stating that
an Order has been passed by the Revision authority reducing the penalty
of Rs.50 lakhs to Rs 5 lakhs. The claimant contended that an amount of
Rs.50 lakhs had been pre-deposited before the Order-in-Appeal dated
24.6.2014.
In response, a letter was sent to M/s MSC Agency (India) Pvt. Ltd.
asking for submission of original TR-6 Challan, bank details etc for
processing of refund application. Accordingly M/s. MSC Agency vide their
letter dated 9.8.2023 submitted the same.
In the mean while, as per the procedure for processing any refund
claim, the department seeks NOC from MCD/ other Units such as Revenue
Recovery Unit of all Commissionerates of the Customs Zone to ascertain
whether the claimants have any dues/arrears of revenue for recovery/ to
be paid to the department and upon getting replies, the refund is
processed and the same is deposited into the account of the claimant.
While following the said procedure in this case too, in reply to the
Unit’s query to RRU-Ch.III/CH.II/Ch.IV, it was informed by the Arrear
Recovery Cell of Chennai IV vide their Note dated 18.8.2023 that there
were four cases pending recovery of dues since 2020, in terms of Section
142 (1) (c) (ii) of the Customs Act,1962 from M/s. MSC Agency and the
MCD Unit vide their Note dated 9.8.2023 informed that an amount of Rs.2
lakhs which was the Redemption Fine imposed vide Order–in-Original
No.21873/2013 dated 11.9.2013 was pending recovery till date. Further
one case bearing OINO No.89837/2022 dated 31.03.2022 was sent by
UCC vide speed post Speed Post ET 144230645IN on 5.4.2022.
Accordingly the copies of the said correspondences were obtained
from the respective Revenue Recovery Unit and letter was sent on
29.8.2023 to M/s. MSC Agency informing the dues pending recovery by
Assistant Commissioner of Customs, RRU who is also holding additional
charge of Refunds Unit,Ch.III. Due to an inadvertent error, while dispatch
of the letter, the copy of letter GEN/RFD/18/2023-REF dated 29.8.2023
was sent in the place of original signed letter.
PARAWISE COMMENTS-REPLY
Reply to Para 1 to Para 29: Facts of the case.
I/1470587/2023
COUNTER TO GROUNDS :
a. As per the procedure and practice, before refund of any claim is
processed, the Refund unit enquires from all Units of the Customs as
to whether any arrear of revenue is pending recovery and upon
receipt of the details, the same is conveyed to the refund applicant.
The contention that the 1st respondent’s letter is illegal, arbitrary,
without authority is baseless in as much as the Proper officer in
charge of issue of refund has to ensure that there are no dues
pending realization before settlement/sanction of refund to the
applicant.
b. The 1st respondent, who is also holding additional administrative
charge of Refunds, has conveyed to the appellant the details of
pending dues and has called for proof of payment of dues raised by
the department. Only on receipt of the reply from the respondent
producing the proof, the 1st respondent shall call on the appellant to
appear for a personal hearing before processing the refund claim and
subsequently the amount will be refunded through RTGS.
c. The appellant has highlighted only on the imposition of penalty
imposed vide Order in Original dated 21873/2013 dated 11.9.2013,
however has not taken cognizance of the fact that an amount of
Rs.2,00,000/- (Rupees two lakhs only) was also imposed on the
appellant as Redemption fine vide the said OIO, dated 11.9.2013,
which is still not paid by them.
d. As the 1st respondent is in charge of recovery of arrears of revenue
pending realization under Section 142 of the Customs Act,1962, the
Petitioner was asked to submit the proof of payment of the penalty
imposed on them failing which necessary action in terms of Section
142 (1) (c)(ii) of the Customs Act,1962 will be initiated.
e-h : The Petitioner has contended non receipt of 4 out of 5 Order-in-
Originals, has thus filed this appeal. However the petitioner fails to take
notice that 3 out of 4 Order-in-Originals were handed over by the
officers of Arrear Recovery Unit, CH-IV to the staff of the petitioner Shri
K. Purushothaman, Deputy Manager M/s. MSC Agency (India) Pvt. Ltd.
Chennai, whose signature has been appended on the face of the letter
furnished to the petitioner on 23.3.2021 and the OIO No.89387/2022
dated 31.3.2022 for Rs.1,25,000/- was dispatched through Speed Post
ET 144230645IN on 5.4.2022. From this, it is evident that the
petitioner's claim that the said OIOs were not received is false and
cannot be taken as grounds of appeal.
Further the petitioner’s contention that section 142 can be initiated
only after the Order-in-Originals are handed over to the concerned
parties and only after the time for appeal remedy gets exhausted is
found to be baseless and does not justify as they have failed to file
appeal despite receiving the said OIOs on 23.3.2021 and that the
department has raised this issue only after expiry of appeal period and
given ample time for seeking legal remedy.
I/1470587/2023
i. The 1st respondent is right in informing the petitioner that failure to

produce the proof of payment of the arrears of revenue, the amount
due to the department shall be appropriated from the amount due to
the petitioner.
j-m The petitioner fails to acknowledge the process involved in
disbursement of any claim by the department. The 1st respondent also
holds the additional charge of 3 rd Respondent unit and thus is
empowered to discharge the duties of the proper officer of Revenue
Recovery and Refunds. Further in terms of Section 142 (1) (a) of
Customs Act, 1962, the 1st respondent has been designated to recover
the dues.
Section 142(1) (a) of the Customs Act provides that where any sum
payable by any person is not paid the proper officer may deduct or may
require any other officer of customs to deduct the amount so payable from
any money owing to such person which may be under the control of the
proper officer or such other officer of ...
As per section 142 (1)(c) (ii) of the Customs Act,1962 : “”if the amount
cannot be recovered from such person in the manner provided in clause (a)
or clause (b)—
(ii) the proper officer may, on an authorization by a Commissioner of
Customs and in accordance with the rules made in this behalf, distrain any
movable or immovable property belonging to or under the control of such
person, and detain the same until the amount payable is paid; and in case,
any part of the said amount payable or of the cost of the distress or keeping
of the property, remains unpaid for a period of thirty days next after any
such distress, may cause the said property to be sold and with the proceeds
of such sale, may satisfy the amount payable and the costs including cost of
sale remaining unpaid and shall render the surplus, if any, to such person]:
6[Provided that where the person (hereinafter referred to as predecessor), by
whom any sum payable under this Act including the amount required to be
paid to the credit of the Central Government under section 28B is not paid,
transfers or otherwise disposes of his business or trade in whole or in part,
or effects any change in the ownership thereof, in consequence of which he
is succeeded in such business or trade by any other person, all goods,
materials, preparations, plants, machineries, vessels, utensils, implements
and articles in the custody or possession of the person so succeeding may
also be attached and sold by the proper officer, after obtaining written
approval from the Commissioner of Customs, for the purposes of recovering
the amount so payable by such predecessor at the time of such transfer or
otherwise disposal or change.]
In view of the above submissions, the department may file counter

on the Writ Petition praying for rejection of the appeal on the above
grounds as it does not have not any merits and substantial grounds.
The relied upon documents are enclosed herewith for filing the
I/1470587/2023
counter.
N. SUDHAKAR
ASSISTANT COMMISSIONER
DC/AC I-O/o Pr Commissioner-Customs-Preventive-Chennai
F.No.GEN/RFD/18/2023-REF
Dated: .10.2023
Encl: As above
To
The Deputy Commissioner of Customs,
Legal & Review, Chennai III Commissionerate,
Chennai

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GEN/RFD/18/2023-REF-O/O PR COMMR-CUS-PREV-CHENNAI

i. The 1st respondent is right in informing the petitioner that failure to

In view of the above submissions, the department may file counter

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