TaxTMI 
TaxTMI 
2025 (9) TMI 141
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....ntry (B/E) No. 957979 dated 09.11.2006; No. 968444 dated 20.11.2006; No. 977535 dated 28.11.2006; No. 995193 dated 14.12.2006; No. 603834 dated 22.12.2006; No. 620368 dated 10.01.2007; No. 632437 dated 19.01.2007 and No. 647545 dated 05.02.2007, all from same supplier M/s Korea Kumho Petro Chemical Co. Ltd., Seoul, Korea (KKPC). The appellants had paid applicable duties of customs relating to aforesaid eight B/Es, including the Anti-Dumping Duty (ADD) imposed vide S. No.1 of Notification No. 78/2005-Customs (ADD) dated 01.09.2005 for a duty amount of US$ 138.39 per M.T., before clearance of the goods from Customs control. The issue with respect to the rate/amount at which the ADD had been imposed in respect of NBR by the Central Government was under dispute before the Principal Bench of this Tribunal in the case of Apar Industries Limited Vs. Designated Authority - 2006 (204) E.L.T. 180 (Tri. Del.) and the Tribunal had decided in its Final Order No. 37-39/06-AD dated 22.09.2006 in Appeals No. C/935/05-AD and No. C/68-69/06-AD that "the appeals filed by exporter/importer are allowed, subject to the direction that the impugned notification No. 78/2005 dated 1st September, 2005, will ....
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.... 8 B/Es vide application dated 07.12.2016 No. 18514/16-17 AM (I) dt. 07.02.2017, Refund of Rs. 5,56,513/- rejected u/Sec. 27 ibid No. 513(CRC-IB)/2018 (JNCH)-Appeals-II dt. 25.05.2018, refund in one B/E No. 647545 dt.05.02.2007 ordered to be examined for unjust enrichment and refund claim of 7 B/Es to be decided afresh Litigation Round-II. Committee of CCs have accepted this order on 19.07.2018 Re-assessment of 7 B/Es and eligibility to notification No. 11/2007-Cus. No. 11/2019-20/AC/ NS-I/JNCH/CAC dt. 15.04.2019, holding appellants not eligible for consequential benefit as notification dt. 31.01.2007 has no retrospective effect; re-assessment is unwarranted; CRC to examine refund of 1 B/E No.647545 No. 694(Gr.-IIH-K)/2020 (JNCH)-Appeals-II dt. 22.05.2020, order of original authority upheld and appeal filed by appellants was rejected. Litigation Round- IIIA Refund claim of higher ADD paid in 8 B/Es vide application dated 26.06.2018 No. 572/2020-21/AM(I)/NS-III dt. 07.01.2021, Refund of Rs. 5,56,513/- rejected. No.468(CRC-I)/2022 (JNCH)/Appeals dt. 24.05.2022, upheld the order of original authority on finding that there is no infirmity therein and rejec....
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.... documents or on limitation of time/ time bar. 3.2 Learned Advocate further submitted that "import duty" means customs duty leviable on the import of goods under the provisions of the Customs Act, 1962 and Customs Tariff Act, 1975; and therefore he claimed that the appellants cannot be levied with ADD at higher rate, than the one which is legally sustainable at the correct rate, for denial of refund of such excess paid duty. Further, he submitted that since the appellants had paid the ADD duty at higher rates under protest, such excess payment of amount of ADD is only a deposit with the government. Therefore, he claimed that the limitation of time limit and unjust enrichment shall not be applicable to their case. 3.3 In support of their case, the Learned Counsel had relied upon the judgements in the following cases: (i) Apar Industries Ltd. Vs Designated Authority - Principal Bench - 2006 (204) E.L.T. 180 (Tri.-Del.); (ii) Government of India Vs. Indian Tobacco Association - [2005 (187) E.L.T. 162 (S.C.)] (iii) Mehler Engineered Products India Pvt. Ltd., Vs. Union of India - [2018 (364) E.L.T. 27 (Mad.] 4. Learned Authorized Representative (AR) a....
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.... (1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person. (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely :- (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; (c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty a....
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....iament. (8) The provisions of the Customs Act, 1962 (52 of 1962) and all rules and regulations made thereunder, including but not limited to those relating to the date for determination of rate of duty, assessment, non-levy, short-levy, refunds, exemptions, interest, recovery, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act or all rules or regulations made thereunder, as the case may be. [Sub-section (8) as above was substituted by the Finance (No. 2) Act, 2024, w.e.f. 16-8-2024. Prior to its substitution, sub-section (8) as amended by Finance (No. 2) Act, 2009, w.e.f. 1-1-1995 read as under:] (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." 9AA. Refund of anti-dumping duty in certain cases.....
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.... to submit its findings, provisional or otherwise to the Central Government as to- (i) normal value, export price and the margin of dumping in relation to the article under investigation; and (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries; (d) to recommend to the Central Government- (i) the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty; (e) to review the need for continuance of anti-dumping duty. 17. (1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding - (a) as to,- (i) the export price, normal value and the margin of dumping of the said art....
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....ADD in excess of ''margin of dumping' is not provided under Section 9A of the Act of 1975, which is the charging section for ADD. In other words, ADD imposed initially at the prescribed rate of US $ 138.39 per M.T., in Notification No. 78/2005-Customs dated 01.09.2005 for S. No.1, does not have the sanction of law under Section 9A ibid. 8.3 I find that the original authority while adjudicating the case had made the following findings in the order-in-original dated 07.01.2021 to arrive at a conclusion on whether the claim for refund of duty, is refundable or otherwise. The extract of the same are as below: 8.4 Learned Commissioner (Appeals) in the impugned order had specifically recorded the directions of the earlier order passed in the II round of litigation by his predecessor, and examined the appeal preferred by the appellants before him for coming to the following conclusions: 8.5 From the above, it transpires that the original authority had taken into consideration the orders passed by the learned Commissioner (Appeals) in the earlier two rounds of litigation, and had sought from the appellants certain documents such as (i) Original challan); (ii) Original B/....
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.... is amply clear that in respect of imports vide eight B/Es, applicable customs duty had been paid along with ADD, as the imported goods are allowed for clearance for home consumption by the proper officer of customs under Section 47 of the Act of 1962, only upon satisfaction that the importer-appellants have paid the duty assessed thereon. It also transpires from the records of the case, that the claim for refund has arisen from the Final Order passed by the Tribunal, by issue of Notification Customs dated 31.01.2007. Therefore, I am of the considered view that the refund application filed by the appellants can be considered on the basis of available records with the Customs Department. 9.3 The facts of the case and the complete history of the anti-dumping investigations conducted by the Designated Authority (DA)/DGAD as indicated by Directorate General of Trade Remedies, Department of Commerce in their website indicates the following: (i) DA had initiated the anti-dumping investigations in respect of Acrylonitrile Butadiene Rubber (NBR) originating in/exported from Germany and Korea RP on 15.03.1996; issued Final Findings in Sunset (First) Review recommending continued....
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....KKPC) during the disputed period. 9.4 On the basis of the above detailed discussions in the previous paragraphs, and the statutory position mandated by Section 9A of the Act of 1975, I am of the considered view that the Notification No. 11/2007-Customs dated 31.01.2007 issued by the Ministry of Finance in pursuance of the acceptance of the order of the Tribunal in the Apar Industries (supra) by the Designated Authority in the Ministry of Commerce (i.e., Director General of Trade Remedies, Department of Commerce) prescribing ADD amount for entry at S. No. 1 as "US $ 38.73 per M.T." by amending the amount of ADD at "US $ 138.39 per M.T." in Notification No. 78/2005-Customs (ADD) dated 01.09.2005, has the retrospective effect. Consequently, the amount of ADD paid by the appellants over and above the ADD liable to be paid in terms of the notification(s) issued under the Act of 1975, is refundable in terms of Section 27 of the Customs Act, 1962. Inasmuch as there is no dispute on the amount of refund claimed by the appellants in respect of eight B/Es, being the excess paid ADD, I am also of the considered view that the refund of Rs. 5,56,513/- is admissible under Section 27 ibid. The....
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....in. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder . Section 11B of ....
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....tside their purview. (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him....
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....t he has himself borne the burden of the said duty. (vi) Section 72 of the Contract Act is based upon and incorporates a rule of equity. In such a situation, equitable considerations cannot be ruled out while applying the said provision. (vii) While examining the claims for refund, the financial chaos which would result in the administration of the State by allowing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in the administration of the affairs of the State. (viii) The decision of this Court in Sales Tax Officer, Benaras v. Kanhaiyalal Mukundlal Saraf [1959 S.C.R. 1350] must be held to have been wrongly decided insofar as it lays down or is understood to have laid down propositions contrary to the propositions enunciated in (i) to (vii) above. It must equally be held that the subsequent decisions of this Court following and applying the said propos....
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....he orders of the Court/Tribunal/Authority or otherwise. It must be held that Union of India v. Jain Spinners [1992 (61) E.L.T. 321 (SC) = 1992 (4) S.C.C. 389] and Union of India v. I.T.C. [1993 (67) E.L.T. 3 (SC) = 1993 Suppl. (4) S.C.C. 326] have been correctly decided. It is, of course, obvious that where the refund proceedings have finally terminated - in the sense that the appeal period has also expired - before the commencement of the 1991 (Amendment) Act [September 19, 1991], they cannot be re-opened and/or governed by Section 11B(3) [as amended by the 1991 (Amendment) Act]. This, however, does not mean that the power of the Appellate Authorities to condone delay in appropriate cases is affected in any manner by this clarification made by us. (xii) Section 11B does provide for the purchaser making the claim for refund provided he is able to establish that he has not passed on the burden to another person. It, therefore, cannot be said that Section 11B is a device to retain the illegally collected taxes by the State. This is equally true of Section 27 of the Customs Act, 1962." 12. I also find that the Hon'ble Madras High Court in the case of Mehler Engineered Prod....
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....pugnancy, inconsistency or absurdity) as if the altered words has been written into the earlier Act with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all". 9.4 In Shyam Sunder & Others v. Ram Kumar & Another reported in AIR 2001 SC 2472, the Hon'ble Supreme Court while dealing with the question whether a substituted provision necessarily mean the amended provision is retrospective in nature, held as follows :- "A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act the same would also follow in the case of a substituted section in an Act." 9.5 In the case of Government of India v. Indian Tobacco Association reported in 2005 (187) E.L.T. 162 (S.C.) while dealing with the exemption notification which was issued by way of substitution, it was held as follows :- "15. The word 'substitute' ordinarily would mean 'to put (one) in place of another' or 'to replace'. In Black's Law Dictionary, Fifth Edition at page 1281, the word 'substitute' has been defined to mean 'to put in the place of another person or thing'....
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....ained and the petitioner should be relegated to avail the alternative remedy as no question of law involved. 14. Since the Court has been called upon to adjudicate the effect of the notification, there is substantial question of law involved and therefore, the Court deems it proper not to relegate the petitioner to avail the appeal remedy as the scope of interpretation of the notification as to whether it is retrospective or not by an appellate authority is very limited. 15. For the above reasons, Writ Petition No. 13656 of 2017 is allowed and the respondent is directed to consider and sanction refund claim made by the petitioner as expeditiously as possible, preferably, within a period of three months from the date of receipt of a copy of this order. 16. For the reasons set out and the findings rendered in the preceding paragraph, the order-in-original dated 22-3-2010 is held to be not sustainable. Accordingly, the same is set aside. Consequently, it is held that the petitioner, who has imported products classifiable under Chapter Heading - CTH 5402 20 90, is not liable for payment of anti-dumping duty on the subject goods. In the result Writ Petition No....
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....excess Anti-Dumping Duty (ADD) in eight B/Es over and above the ADD applicable at US $ 38.73 per M.T. as mentioned in Notification No. 11/2007-Customs dated 31.01.2007, issued by the Ministry of Finance. Further, on the basis of the above discussions in preceding paragraphs, I am also of the considered view that Notification No. 11/2007-Customs dated 31.01.2007 substituting the amount of ADD as mentioned in Notification No. 78/2005-Customs (ADD) dated 01.09.2005 has retrospective effect, since the same has been issued in acceptance of the order of the Tribunal in the case of Apar Industries (supra) and the Designated Authority in the Ministry of Commerce (i.e., Director General of Trade Remedies, Department of Commerce) had also recommended for consequential change in the Ministry of Finance notification imposing the ADD on the impugned goods. However, as the question of unjust enrichment has not been examined by the authorities below and in order to consider refund of the excess duty paid, I am of the considered view that this issue is required to be examined by the Original Authority. Therefore, I consider it necessary to remand the case for the limited purpose of examining the u....
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....cuments as mentioned in Para 10 above. Therefore, I find that the refund claim filed by the Importer for the bill of entry no. 647545 dated 05.02.2007 is incomplete and the same cannot be processed in absence of the aforesaid documents. 12. Limitation :- As per sub Section 1(B)(b) of Section 27 of the Customs Act, 1962, save as otherwise provided in this Section, the period of limitation of one year shall be computed in the following manner, namely: "where the duty hecomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction." In the instant case, the Importer vide letter dated 26.06.2018, received in this office on 28.06.2018 had 'mode a request for implementation of the Order-In-Appeal No. 513(CRC- (B)/2018(JNCH)/Appeal-II dated 25.05.2018. Thus, the date of Commissioner (Appeals)'s Order is 25.05.2018 and the date of request of the Importer for implementation of the said O-I-A is 28.06.2018. Therefore, I find that the refund claim filed by the Importer is within the limitation of one year.....
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.... refund claim was processed by the Deputy Commissioner of Customs, CRC-I, NS-III, JNCH, Nhava Sheva who passed an order vide Order-in-Original no. 572/2020-21/AM(I)/NS-III S/49-523/2021/Misc/JNCH/Appeal = 'M/s Imperial Waterproofing Industries Pvt. Ltd. dated 07.01.2021 wherein their refund claim for refund of ADD amounting to Rs.5,56,513/- (Rs. Five Lakhs Fiftysix Thousand Five Hundred Thirteen Only) paid in respect of eight BEs was rejected. Refund in respect of BE no. 647545 dated 05.02.2007 was rejected for want of documents and refund in respect of the remaining seven BEs was rejected on the ground that the amendment Notification no. 11/2007 dated 31.01.2007 was not having retrospective effect. So, the impugned order is the consequence of Order-in-Appeal dated 25.05.2018. 14. From the discussions above it emerges that the appeal pending in CESTAT and the impugned Order-in-Original are consequences of two different Orders-in-Appeal. 15. As regards legality of the impugned Order-in-Original, Ld. Advocate of the appellant, in their written submission forwarded through email dated 09.05.2022, has submitted that the . refund claim in respect of BE no. 647545 dated 05.02....
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..... Nothing has been brought before me by the appellant to show that there is a stay by the Hon'ble CESTAT on the Order-in-Appeal no. 694(Gr. II H-K)/2020(JNCH)/Appeal-Il dated 22.05.2020. So the said Order-in-Appeal still holds the ground vide which it has been settled that the appellant was not eligible for any consequential benefit in respect of the seven BEs filed S/49-523/2021/Misc/JNCH/Appeal M/s Imperial Waterproofing Industries Pvt. Ltd. prior to 31.01.2007 as Notification no. 11/2007-Customs dated 31.01.2007 was not having retrospective effect. This is the ground on which the OA has rejected the refund claim of the appellant in respect of seven BEs. So, I do not find any infirmity in the impugned order passed by the OA. 18. In view of the above discussions and findings, I am of the considered view that there is no infirmity in the impugned Order-in-Original No. 572/2020-21/AM(I)/NS-III dated 07.01.2021 passed by the Original Authority and hence, I uphold the same. Thus, I do not find any merit in the appeal filed by the Appellant and hence, I reject the same. 19. Accordingly, appeal no. 523/2021 filed by M/s Imperial Waterproofing Industries Pvt. Ltd. stands disp....
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....00 40025900 ACRYLONITRILE BUTADIENE RUBBER KOSYN KNB-35L (NITR 06 ILE BUTADIENE RUBBER NBR> 3030.00 1.930000 40.025900 12.50 % 0.00 Exim Notn "( DEPB) 089/2005 1 . BCD:0 CVD : 0 BCD Fg 34302.00 CVD Fg 0.00 ·KG5 269035.56 ... 40025900 16.00 % 48426.40. Educational Cess'on CVD - 2.00 % 968:53 Customs Educational Cess - 2.00 % . 987.90 Addl Duty - (Imports) 1 019/2006 4.00 % 14148.80 Rs 1491682.33 Page Total Rs. 64531.63 Rs. 1491682.33 BE' Gross Total Rs. 64531.63 BCD Rs 0.00 . NCD Du.ty Rs. · 0.00 ANTID Rs 0.00 SAFEGUARD Duty Rs. 0.00 CVD Rs 48426.40 Sch 2 Spl Excise Duty .Rs 0.00 0.00 GSIA Rs .0.00 TTA Rs. 0.00 Edu. Cess CVD. Rs. 968.53 Customs Edu. Cess Rs . 987.90 Health CVD Rs. 0.00 Addil Duty - ( Imports) Rs. 14148.80 Duty Payable: Rs. 64532 Rs. Sixty Four Thousand Five Hundred and Thirty Two only RSP Cus . - - Container Details 1 15502 F GLDUZ067977 Licence Details ... EDUZOUT Debit Val/Qty Debit_duty 266371.8 0117 1210541.36 E.D.I. Service Centre 0.00 13770 GATEWAYCCFS Ims)Itmno Licence No/Dt Reg. ....