Custom, Excise & Service Tax Tribunal
M/S Toyo Engineering India Ltd vs Commissioner Of Customs (Import), ... on 7 January, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPEAL NO. C/513/06
(Arising out of Order-in-Appeal No. 32/2006 MCH/D.C. VI/04 dated 19.01.2006 passed by the Commissioner of Customs (Appeals) Mumbai.)
For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : yes CESTAT (Procedure) Rules, 1982 for Publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen of the order?
4. Whether Order is to be circulated to the Departmental : yes authorities?
M/s Toyo Engineering India Ltd.
: Appellant
Versus
Commissioner of Customs (Import), Mumbai
: Respondent
Appearance Shri D.K. Subedar, Advocate : For Appellant Shri D. Nagvenkar, Addl. Commr. (A.R.) : For Respondent CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing : 07.01.2014 Date of Decision: 07.01.2014 ORDER NO.......................................................
Per: Anil Choudhary:
The appellant (M/s Toyo Engineering India Ltd.) herein imported some machinery under the Project Import Regulation, 1986 vide Bill of Entry No. 00433 dated 13.03.1986 & Bill of Entry No. 2914 dated 10.06.1986 & claimed assessment of the goods under heading 98.01 of the Customs Tariff Act, 1975 being the capital goods for setting up of Ammonia Storage Package Unit and Co-generation Plant of IFFCO, installed at Aonla, Near Bareilly, UP. The appellant had successfully completed the erection of the power plant for IFFCO and the capital goods were used for erection of the plant. The appellant had paid import duty under protest at the time of import. There was a dispute with the department regarding classification, etc. which stood finally settled in favour of appellant by order dated 31.08.2006 Civil Appeal No. 2352 of 2001, of the Hon'ble Apex Court. In the meantime the appellant filed application for refund on 25.01.2001 which was allowed, but amount was credited to C.W. Fund.
2. By order of this Tribunal dated 19.09.2003, it was held that the appellant is entitled to refund of duty paid and also unjust enrichment is not attracted. In view of the ruling in the case of Black Diamond Beverages Vs. Commissioner of Customs, Calcutta 2002 (148) ELT 1016, Tribunal allowed the appeal with consequential relief. Revenue being aggrieved, preferred an appeal against the Tribunal order before the Hon'ble High Court in Customs Appeal No. 4/2004. In the meantime, in terms of the Tribunal order dated 19.09.2003 refund of Rs. 30,09,840/- was disbursed to the appellant without interest in respect of Bill of Entry No. 00433. By order dated 07.10.2005 the Hon'ble High Court in the aforementioned appeal upheld the entitlement of refund to the appellant, but remanded the matter to the Deputy Commissioner of Customs (Contract Cell) for examining issue of unjust enrichment, giving direction to issue show-cause notice within six weeks and giving further time of four weeks to the appellants herein for filing their reply and also directing the Deputy Commissioner to adjudicate the issue within six weeks from the date of conclusion of personal hearing. It is brought to my notice by the appellant that instead of giving an opportunity of hearing on the issue, in terms of the Hon'ble High Court Order, the Commissioner of Customs (Import) directed the Deputy Commissioner (Contract Cell) to file an appeal against the order granting refund, during the pendency of the appeal before the Hon'ble High Court. Then an appeal was filed by the Revenue being Appeal No. 32/2006/MCH/D.C/VI/04 before Commissioner (Appeals). By order dated 19.01.2006 appeal was decided taking notice of the order of the Hon'ble High Court in the matter. The Commissioner (Appeals) erroneously observed that in view of the Hon'ble High Courts order dated 07.10.2005, the order of CEGAT dated 19.09.2003 is no longer in existence and the department can recover the amount already paid to the appellant and allowed the appeal of the Revenue setting aside the order granting refund dated 30.12.2004. Further observed that issue of refund to be decided after the decision on the issue of unjust enrichment after giving the respondent (M/s Toyo Engineering India Ltd.) an opportunity of effective hearing.
3. Heard the parties. I find that the impugned Order-in-Appeal dated 19.01.2006 passed by the Commissioner (Appeals) is hit by the doctrine of merger as the order of Tribunal dated 19.09.2003 had merged with Order of the Hon'ble High Court dated 07.10.2005, hence the same is set aside.
4. In the facts and circumstances of the case, I find that Revenue has erred in filing the appeal before the Commissioner (Appeals) instead of deciding the issue in terms of the order of the Hon'ble High Court dated 07.10.2005, on the limited question of unjust enrichment. Therefore, I remand and direct the Deputy Commissioner (Contract Cell), New Customs House, Mumbai to decide the issue of unjust enrichment within a period of four weeks from the date of receipt of this order. It is further submitted by the appellant, the original documents in support of the unjust enrichment claim have already been submitted earlier to the department. In this view of the matter, the Deputy Commissioner will not insist for filing of original documents in the matter and decide the claim on the basis of true photo copies, duly attested by the appellant. This order will also be squarely applicable for the other refund, in respect of Bill of Entry No. 2914 of 10.06.1986, for Rs. 12,19,332.70 in view of the order of the Hon'ble Supreme Court in the appellants case. The appellant will also be entitled to interest as per Rules, if refund is found payable. Thus, the appeal is allowed by way of remand in terms of the Hon'ble High Court order dated 07.10.2005.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4