AI Drafter 
TaxTMI 
TaxTMI 
2019 (1) TMI 575
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....ment of Anti Dumping Duty of Rs. 6,86,759/- along with interest on duty @ 15% p a towards duty liability from the date of clearance of the goods to the actual payment of duty." 2.1 Appellants had obtained Advance license No 0310253750 dated 19.02.2004 under DEEC Scheme governed by Notification No 43/2002 dated 19.04.2002. Against the said license they had imported duty free goods. 2.2 Since the Appellants had not exported the entire quantity required to fulfill the entire export obligation appellants were directed by the Joint Director, DGFT to pay duty on all items imported without payment of duty. Appellants paid the duty as directed and Jt Director DGFT issued the redemption letter on 06.02.2009. 2.3 However before cancelling the LUT Bond dtd 13.04.2004, Customs Authority issued a Show Cause Notice dated 11.06.2009 demanding Anti Dumping duty on Alpha Dane Salt for excess quantity of 1686.70 Kgs amounting to Rs. 6,86,759/- along with interest. 2.4 Show Cause Notice was adjudicated as per the order of adjudicating authority, supra. On appeal Learned Commissioner (Appeal) upheld the order in original. Aggrieved by the order of Commissioner (Appeal) Appellants have file....
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....oms Act, 1962. Since Anti Dumping duty is levied under Section 9A of Customs Tariff Act, it cannot be considered as duty of Custom. iii. The section 143A of Customs Act, 1962 which has been applied by Commissioner appeals for upholding the demand made against them has never been brought into force., and hence reliance placed by the Commissioner (Appeal) on the same is not correct. iv. In case of Dharampal Lalchand Chug [2015 (323) ELT 753 (Bom)], and stated that by resorting to the LUT/ Bond, the period of limitation as prescribed by the Section 28 cannot be surpassed. The demand of duty if required to be made will have to be made within the period of limitation prescribed. 4.3 Arguing for the revenue learned Authorized Representative submitted i. Notification No 43/2002-Cus under which the goods were cleared without payment of duty provided exemption from duties of custom, leviable subject to certain conditions. Since these conditions were not fulfilled subsequently the duty not paid was required to be paid by the appellant, in terms of Bond/ LUT executed by the appellant for claiming the exemption. ii. The claim of the appellant that they had not bound themselves t....
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....in this notification have not been complied with, together with interest at the rate of twenty-four percent per annum from the date of clearance of the said materials: Provided that bond shall not be necessary in respect of imports made after the discharge of export obligation in full; (iv) ....... (v) ....... (vi) ..... (vii) ........ (viii) ......... 2. ........ Explanation. - In this notification, - ................" 5.3 From the plain reading of the notification it is quite evident that the exemption has been granted from the payment of "whole of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), and from the whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon respectively under sections 3, 8 and 9A of the said Customs Tariff Act." For availing the said exemption importer is required to execute a bond "binding himself to pay on demand an amount equal to the duty leviable, but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been complied with," 5.4 The Bond that is thus ex....
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.... of unjust enrichment does not apply. The second question argued was that the certificate of the chartered accountant which was submitted on behalf of the respondent to claim that there was no unjust enrichment in this case is not a relevant document. Perusal of the order of the tribunal shows that the tribunal relying upon a Larger Bench judgment in the case of Caprihans India Limited v. Collector of Customs, Bombay [2001 (129) E.L.T. 162 (Tri. - LB)] held that since the matter is covered by Section 9A of the Customs Tariff Act, doctrine of unjust enrichment does not apply. It was argued before us that though the respondent has produced sufficient material on record, the tribunal did not go into it. 3. We have been pointed out the judgment of the Supreme Court in the case of Sahakari Khand Udyog Mandal Limited v. Commissioner of Central Excise & Customs reported in 2005 (181) E.L.T. 328 (S.C.) where now the Supreme Court has held that even where the provisions of Section 11B of the Central Excise Act do not apply, the doctrine of unjust enrichment can apply and, therefore, merely because the matter is covered by Section 9A, operation of doctrine of unjust enrichment may not be ....
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....es, we do not find any provision which would enable us to conclude that the date of knowledge or the date of discovery of the fraud by the Revenue will be the determinative and decisive date. If that is beyond the period of five years, then, Section 11A will have to be interpreted accordingly is the express stand and which we find cannot be accepted because the plain language of the statute or the words of the section cannot be brushed aside or ignored. We find that the words being such and therefore, we cannot accept this contention of Mr. Pakale." 5.10 The said decision of the Hon'ble Bombay High Court do not advance the case of the appellants any further. In that case the issue was not in respect of fulfillment of an export obligation in future, but demand was in respect of the goods cleared from the factory in contravention of the provisions of the exemption notification. The demand of duty in respect of the goods cleared in the case before the Bombay High Court was not dependent on the fulfillment of subsequent obligation, whereas in the present case the demand has arisen on account of non fulfillment of the export obligation as specified in the advance license. The appella....