TaxTMI 
TaxTMI 
2023 (1) TMI 156
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....12.5.2015 and (3) 9308623 dated 21.5.2015 for clearance of their imported goods. 3.2) On the above imported goods, a Provisional Anti Dumping Duty at specified rate was imposed under the Provisional Anti Dumping Duty Notification No.15/2014 dated 11.4.2014 which was valid for a period of six months as per the provisions of the law and as such, validity of the said notification expired on 11.10.2014. 3.3) Another Notification No.21/2015 dated 22.5.2015 was issued imposing Anti Dumping Duty at the same rate as specified in the Provisional Anti Dumping Duty Notification for a period of five years. 3.4) According to the petitioners, there was no Anti Dumping Duty leviable between the expiry of first Provisional Anti Dumping Duty Notification No.15/2014 dated 11.4.2014 and Notification No.21/2015 dated 22.5.2015. However, the petitioners were directed by the respondent authorities to pay Anti Dumping Duty of Rs.23,62,796.00 as per Notification No.21/2015 dated 22.5.2015 on the imported goods and accordingly, the petitioner paid such Anti Dumping Duty so as to take delivery of the goods. 3.5) The petitioners by letter dated 15.10.2015 requested the respondent authorities to refund th....
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....s Ltd. reported in 2004 (172) ELT 145 (SC), refund cannot be granted. 3.13) The petitioners again challenged the order-in-original dated 15.03.2018 before the Commissioner (Appeals) who by order dated 22.01.2019 allowed the appeal and remitted the matter back to the adjudicating authority holding that issue of wrong levy of Provisional Anti Dumping Duty is covered by the decision of Apex Court in case of G.M. Exports (supra) and the decision in case of M/s. Priya Blue Industries Ltd.(supra) is distinguishable in view of further decision of the Delhi High Court in case of Aman Medical Products v. Commissioner reported in 2010 (250) ELT 30 (Del) and decision of Madras High Court in case of Enterprise International Ltd. v. Commissioner of Customs, Chennai reported in 2013 (295) ELT 659(Mad). The Commissioner (Appeals) therefore, directed the adjudicating authority to follow the principles of natural justice and grant an opportunity of hearing to the petitioners before passing an order as per the observations made in the order. 3.14) It is the case of the petitioners that even after a passage of six months from the date of issuance of above directions by the Commissioner (Appeals), t....
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....efore, submitted that the respondent no.2 is required to grant the refund in view of the observations made by the appellate authority but instead thereof, respondent no.2 has filed an affidavit in reply justifying the stand of the adjudicating authority which was already taken in the year 2018 but such view is rejected by the appellate authority in the order dated 22.01.2019 and therefore, respondent no.2 is required to pass the order of refund as per the directions of the appellate authority. It was submitted that respondent no.2 cannot ignore the directions of the appellate authority and continue to sit tight over the matter by not passing the order to grant refund of the claim of the petitioners. 4.5) It was further submitted that when the respondent authority has not passed any order of refund of claim of the tax collected without any authority of law, the writ petition is maintainable under Article 226 of the Constitution of India. It was also submitted that the refund is required to be granted to the petitioners along with interest and therefore, the petitioners are entitled to interest on the refund amount of Anti Dumping Duty which is paid in the year 2015 though the petit....
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...., submitted that when the petitioners are not entitled to refund of the amount of the Anti Dumping Duty paid by the petitioners, the petition is not liable to be entertained. 6.Considering the above submissions, it appears that the petitioners paid the Anti Dumping Duty as per the directions of the respondent authorities to clear the goods imported on 21.05.2015. Admittedly on that date, Notification No.15/2014 dated 11.4.2014 levying Anti Dumping Duty for a period of six months was not applicable. The contention raised on behalf of the respondents that Notification No.21/2015 dated 22.5.2015 is issued with effect from 11.04.2014 is not tenable in law in view of decision of the Apex Court in case of G.M. Exports (supra), wherein the Apex Court decided the question of law as to whether Anti Dumping Duty imposed with respect to imports made during the period between the expiry of the provisional Anti Dumping Duty and the imposition of the final Anti Dumping Duty is legal and valid or not and while deciding such a question of law, after considering the provisions in detail, the Apex Court held as under : "46. We also find force in the submission of learned counsel for the assessees....
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....nother Supreme Court decision in the case of M/s Priya Blue Industries Ltd. -2004 (172) ELT 145 SC relied upon in the impugned order, the same has been challenged by the appellant by relying on the case law in the matter of Aman Medical Products v. Commissioner- 2010 (250) E.L.T. 30 (Del.) to contend that M/s Priya Blue Industries Ltd. - 2004 (172) ELT 145 SC is not applicable to the present case. Further, I find that in the case of Enterprise International Ltd. vs. Commissioner of Customs, Chennai-2013 (295) E.L.T. 659 (Mad), Hon'ble High Court has laid down that the facts of the case before the Supreme Court in Priya Blue Industries case stand entirely on a different footing as compared to matters of finalization of provisional anti-dumping duty in terms of Section 9A(2)(b) of the Customs Tariff Act, 1975. In the instant case also the matter pertains to refund arising out of finalization of provisional anti-dumping duty. However, in the impugned order, the above case laws were not considered or discussed while applying the ratio of the Apex Court decision in the case of M/s Priya Blue Industries Ltd. - 2004 (172) ELT 145 SC. Therefore, the applicability of the ratio of the Ap....
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....t on part of the respondent no.2 to justify that the petitioners are not entitled to refund in the affidavit in reply cannot be sustained. 10. The respondent no.2 in the affidavit in reply has disclosed the grounds for not granting refund to the petitioners justifying the stand of the respondents for not passing the order in original after remand and has reiterated that the order dated 15.03.2018 rejecting the refund claim was just and proper though the same order is quashed and set aside by appellate authority by order dated 22.01.2019. Such attitude and action of the respondent no.2 authority is required to be deprecated as the same is contrary to the judicial propriety. 11. The Apex Court in case of Salonah Tea Company Ltd. Etc.(supra) has held that under Article 226 of the Constitution of India, the High Court has power to direct the refund unless there has been avoidable laches on the part of the petitioners in a case where tax or money has been realised without the authority of law. 12. Similarly, in case of HMM Ltd. v. Administrator, Bangalore City Corporation(supra), the Apex Court held that when there is no question of "unjust enrichment", the petitioner is entitled to ....