2019 (11) TMI 543

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....resin in terms of the notification No. 70/2010-Cus dated 25.06.2010. The CESTAT vide common order dated 06.07.2012 in order No. AD/M/21/12-Customs and order No. AD/A/101/12-Customs, titled as Leather Cloth & Plastics MFRS' Association v. UOI, 2012 (282) ELT 438(Tri- Delhi) quashed the said notification. Consequently, the Petitioner moved applications for claiming refund under Section 27 of Customs Act, 1962 of Rs. 39,46,441 and Rs. 24,61,739 filed on 18.01.2013 and 27.02.2013 respectively. The sanctioning authority rejected the applications for refund on 17.12.2013. However, the Petitioner's appeal against the said order before the Commissioner of Customs (Appeals) was allowed vide order No. CC(A)CUS/577&578/2014 dated 11.11.2014 and refund was directed in favour of the Petitioner. A further appeal was preferred by the Respondents to the CESTAT which was disposed of on 13.01.2017 and the matter was remanded back to the original authority for a fresh decision on the Petitioner's claim for refund. On 27.02.2018, the Assistant Commissioner of Customs (Refund) passed an order sanctioning refund of Rs. 64, 08,180/- (which is an aggregate of Rs. 39, 46,441 and Rs. 24,61,739/-). The said ....

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....ndum dt. 03.08.2012 to CESTAT's order dated 06.07.2012 (iii) Statutory Auditor's certificate dated 02.11.2017 and (iv) balance sheets for F. Y. 2015-16 and 2016-17 for satisfying your refund claim from angle of Unjust Enrichment." 6. The Respondents had also taken the stand that the claim for refund filed by the Petitioner was pre-mature. Reliance was placed on the decision of the Supreme Court in Priya Blue Industries Ltd. v. Commr. of Customs (Preventive), (2005) 10 SCC 433 which read as follows: "6.........Once an order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order." 7. Learned counsel for the Petitioner submits that once the CESTAT has finally held that no anti dumping duty was payable by the Petitio....

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....tion. 9. The Supreme Court interpreted the aforesaid provision. The relevant portion of the judgment read as follows: "12. It is manifest from the afore extracted provisions that Section 11-BB of the Act comes into play only after an order for refund has been made under Section 11-B of the Act. Section 11- BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11-B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below the proviso to Section 11-BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise but by an appellate authority or the court, then for the purpose of this section the order made by such higher appellate authority or by the court shall be deemed to be an order made under sub-section (2) of Section 11-B of the....

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....rder dated 14.06.2018 whereby the Petitioner's claim for interest was rejected. 15. Having heard the learned counsels and considered all aspects, we are of the view that the Petitioner is entitled to grant of interest in terms of Section 27A of the Customs Act, 1962 i.e. from the expiry of three months, on amount of Rs. 39,46,441/- from the date of the application for refund of the said amount i.e. 18.01.2013 onwards, till the amount was refunded on 27.02.2018. Similarly, the Petitioner is entitled to interest on the amount of Rs. 24,61,739/- from 27.02.2013 onwards till the date of refund i.e. 27.02.2018. The refund claim of the Petitioner ought to have been processed by the Respondents upon application for refund being made on aforesaid dates and there was no justification for not processing and granting the claim once the issue relating to ADD has been finally adjudicated by the CESTAT on 06.07.2012, in Leather Cloth & Plastid MFRS' Association v. UOI, 2012 (282) ELT 438(Tri- Delhi). In Leather Cloth & Plastid MFRS' Association (supra), the CESTAT had set aside the Notification No. 70/2010-Cus and remanded the matter to the designated authority for a fresh review. After the rev....