2015 (12) TMI 242
X X X X Extracts X X X X
X X X X Extracts X X X X
.....306/86, the power project shall mean 'such project whose output or end product is power but shall not include captive power plant set up by the units engaged in activities other than power generation'. Since the appellant proposed to set up a captive power plant, the notification benefit was denied. Pending the dispute, appellant paid the Basic Customs Duty for the period 29.05.1996 to 22.09.1996 at tariff rate under protest and filed a refund claim on 12.01.1987. Since Department did not sanction their refund claim, they filed writ petition before Hon'ble High Court of Madras praying to declare the Explanation under Notification No.306/86 to Notification No.133/85, dated 19.04.1985 is unconstitutional, void and ultra vires and also through writ of mandamus, directed the department to refund the duty collected in excess of 25%. Hon'ble High Court in their order dated 02.03.1995 in Writ Petition No.4566 & 4567/1987, allowed both the writ petitions of the appellant and quashed part of the Notification No.306/86 to captive power plant. The appellant approached Customs by letter dated 14.09.1995 seeking refund of the amount. The Revenue preferred writ appeal nos.358 & 359/97 against t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dated 12.10.2011 in the Writ Petition No.23149 -23150 of 2011 granted the interim stay on the show-cause notice. In order to avoid any dispute immediately after issue of show-cause notice, the appellant paid back the entire amount of Rs. 4,10,90,669/- vide TR-6 challan, dated 02.09.2011. 9. The department reviewed the Adjudication order dated 04.08.2011 and preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) in the impugned order dated 08.01.2013 allowed the Revenue appeal. 10. The appellant filed the present appeal against the impugned order and the Revenue also filed the appeal against the bar of unjust enrichment. 11. The learned Senior Counsel appearing for the appellant was heard in detail and also submitted a written synopsis of the entire case and reiterated the same. He submits that the appellant imported plant and machinery for the captive power plant under project imports, which was duly registered with the Customs. The Customs denied the exemption benefit of Notification No.133/85 which allows Basic Customs Duty at 'nil' rate of duty. Since they were in need of plant and machinery, they cleared the same through Customs paying duty under p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the appellant is concerned. He relied on the Hon'ble High Court's [DB] Order dated 17.07.2000. He further submits that the Hon'ble High Court in their Order dated 13.10.2008 and again on 08.10.2009 while dismissing the writ appeal and the review applications categorically directed the department to implement the order of the Hon'ble Single judge. He submits that the issue has attained finality whereas the Commissioner (Appeals) again reopened the issue in the impugned order by relying on the Supreme Court decision in the case of Indian Charge Chrome. 13. He relied on the Hon'ble decision of the Hon'ble Supreme Court in the case of RBF Big Corporation Vs Commissioner of Customs (Imports), Mumbai reported in 2011 (264) E.L.T.486 (S.C.) and submits that the Hon'ble Supreme Court has held that once the High Court order is binding upon the lower authorities then it is not open to subordinate authorities to examine the correctness of the High Court's order. On the other hand, the lower appellate authority has blatantly passed order in this regard against the Hon'ble High Court's order 14. On the other hand, learned Authorised Representative submits that as regards the Revenue appeal pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt's law. Therefore, the department reviewed the order under Section 129B , which is an independent power vested with the government to seek relief against any order passed by the Adjudicating authority. He further submits that the appellate authority has rightly allowed their appeal. He further submits that when the Adjudicating authority sanctioned the refund claim, the Hon'ble Supreme Court judgment is already in operation and it is binding. In this regard, he relied on the following decisions:- (i) Union of India Vs R.C. Fabrics (P) Ltd. reported in 2002 (139) E.L.T.12 (S.C.). (ii) M.M. Murthy Vs State of Karnataka and Others reported in (2003) 7 SCC 517 [Para 8]. He submits that direction of the High Court is to be correctly appreciated and department had complied the same by assessing the goods as per direction. 16. He further submits that case law relied by appellant in the case of RBF Big Corporation is totally different to the facts of the present case, wherein it is the non-compliance of the Hon'ble High Court's direction. Whereas in the present case, it was duly complied and there was no disobedience. Revenue is correct in taking recourse to the review mechanism unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the Commissioner (Appeals) set aside the consequential refund and allowed the Revenue's appeal. 19. It is pertinent to state that in the present case, the claim of refund relates to duty paid on import of capital goods and claimed under the project import and claimed the benefit of Notification No. 133/85. We find that the original refund claim was filed on 12.1.1987. It is seen that from January, 1985 to October, 2009 for almost 24 years the claim was put through series of writ petitions and writ appeals filed either by the appellant or by the Revenue resulting in series of orders passed by the Hon'ble Single Judge or the Division Bench of the High Court, Madras. 20. The Hon'ble High Court in their order dt. 2.3.1995 in writ petition No.4566 & 4567/87 allowed both the writ petitions of the appellants and struck down that part of the Notification No. 306/96 which denied the benefits to captive power plant. Against the above Hon'ble High Court order, Revenue filed W.A.Nos.358 & 359/97 against the above Hon'ble High Court order and the Hon'ble High Court in their order dt. 17.7.2000 dismissed both the writ appeals. It is evident that Revenue choose not to file ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roached the Hon'ble High Court by filing Review Application No.128/2009 seeking to review the Hon'ble High Court's order dt. 13.10.2008. The Division Bench of the Hon'ble High Court in their order dt. 8.10.2009 dismissed the said review application filed by Revenue. The relevant paragraph of the said High Court's order is as under :- "3. Now, by virtue of this review application, the Administration is requiring us to pass orders on the representation submitted by the writ petitioner and to reject the same. It is an unfortunate situation, wherein the Administration by virtue of this review application is seeking orders of rejection of the representation submitted by the writ petitioner. When the Administration is required to dispose of the representation of the petitioner, they could very well consider all the facts and circumstances of the case and dispose of the representation on merits and in accordance with law. Instead of complying with the direction concurrently issued by the learned single Judge and also by the Division Bench in the writ appeal, the Administration is gaining time by filing this type of frivolous and vexatious litigations, besides seeks us to exe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely Hon'ble Supreme Court decision in the case of Ishwar Dutt Vs Land Acquisition Collector and Another - (2005) 7 SCC 190. The relevant part of the order of the Hon'ble Supreme Court in the above case is reproduced as under :- "29. Furthermore, a writ of mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of a validating statute is brought into force. 30. In Madan Mohan Pathak V Union of India the Constitution Bench observed : (SCC p.67, para 9) "Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous the remedy may be by way of appeal or review, but....