TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 141
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....444 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 be suitably amended by the Government of India ....
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....t. 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 rejected the appeal filed by appellants. Litigation Round- IIIB 2.4 In the last round of l....
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....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) appearing for Revenue, reiterated the findings made by the Commissioner (Appeals) in the impugned order and submitted tha....
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....stablish 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 after the final assessment thereof or in case of re-assessment, from the date of such re-assessment." Customs Tariff Act, 1975 "Section 2. Duties specified in the Schedules to be levied. The rates at which duties o....
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....s 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. (1) Where upon determination by an officer authorised in this behalf by the Central Government under clause (ii) of sub-section (2), an importer proves to the satisfaction of the Central Government that he has paid anti-dumping duty imposed under sub-section (1) of section 9A on any article, in excess of the actual margin....
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....o 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 article; xxx xxx xxx xxx 18. Levy of duty. (1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17" 8.1 Plain reading of the above legal provisions, makes the position very clear that the sc....
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....onclusion 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/E (importer copy); (iii) CA certificate; (iv) Balance Sheet and (v) RTGS/NEFT letter. Since, such documents were not produced he concluded that the refund claim is incomplete. However, he has rightly held that the refund claim filed by the importer vide letter dated 26.06.2018, was well within the time limitation of one year the refund claim under Section 27 ibid. Furthermore, in the absence of manual challans for payment of ADD not being submitted by the appellants as proof of payment of ADD, and in....
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....ed 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 imposition of ADD on 21.09.2002; issued Final Findings in Mid Term Review on 06.05.2005; and initiated Sunset (Second) Review on 08.10.2007. (ii) DA in his Sunset Review (2) of anti-dumping duty imposed on imports of Acrylonitrile Butadiene Rubber (NBR) originating in/exported from Germany and Korea RP and submitted his recommendations vide the FINAL FINDINGS in Notification No. 15/6/2007-DGAD dated 04.10.2008, suggesting that the ADD imposed on KKPC shall continue to be charged at US $ 38.73 per MT. The extra....
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....try 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. Therefore, I am of the considered view, that the impugned order is contrary to the factual position of the case as discussed above and on this ground, it is liable to be set aside. 10. As regards the question about the refund of Rs. 5,56,513/- being the excess ADD paid by the appellants, whether it is refundable to the Consumer Welfare Fund or to the appellants, the question of 'unjust enrichment' angle is required to be examined. In order to decide whether, the incidence of duty in respect of excess ADD paid by the appellants-importer had not be....
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....cle 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 the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in t....
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....ted 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 for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutory doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctri....
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....nd 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 propositions in Kanhaiyalal have also been wrongly decided to the above extent. This declaration - or the law laid down in propositions (i) to (vii) above - shall not however entitle the State to recover the taxes/duties already refunded and in respect whereof no proceedings are pending before any Authority/Tribunal or Court as on this date. All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of an Authority, Tribunal or Court or otherwise. (ix) The amendments made and the provisions inserted by the Central....
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....s 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 Products India Private Limited Vs. Union of India in W.P. No. 13656-13657 of 2017 having identical set of facts have examine the issues and delivered their judgement dated 21.06.2018, by holding that Notification issued subsequent to the original notification substituting the chapter heading is retrospective in nature. The relevant paragraphs in the said judgement is extracted and given below: "8. To be noted that the notification uses the word 'substituted'. The word 'substituted' has been used to mean that wherever in the notification dated 21-10-2015, the Entry 5402 occurs, it shall be substituted with Entry 5402 47. 9.1 The Hon'ble Supreme Court in the cas....
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....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' or 'to exchange'. In Collins English Dictionary, the word 'substitute' has been defined to mean to serve or cause to serve in place of another person or thing; 'to replace (an atom or group in a molecule) with (another atom or group); or 'a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'. 16. By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby. 17. There cannot furthermore be any doubt whatsoever that when a person is held to be eligible to obtain the benefits of an exemption notification, the same should be liberal....
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....or 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. 13657 of 2017 is allowed. No costs." 13. I further find that the judgement of the Hon'ble Supreme Court delivered in the case of Commissioner of Income Tax (Central)-I, New Delhi Vs. Vatika Township Private Limited, in Civil Appeal No.8750 of 2014 relied upon by the learned AR is not relevant to the present case, inasmuch as the facts in the relied upon case are entirely different from the facts of the present case before me. In the referred case, three different types of amendments were introduced in the Income Tax viz., prospective amendment with effect from (w.e.f.) a fixed date, retrospective amendment w.e.f. a fixed anterior date and clarificatory amendments which are retrospective in nature, through issued in the Finance Bill, 2002. In the context of levy of surcharge on blo....