Customs, Excise and Gold Tribunal - Bangalore
Rao Insulating Company Limited vs The Commissioner Of Customs on 16 January, 2007
Equivalent citations: 2007(118)ECC23, 2007ECR23(TRI.-BANGALORE), 2007(213)ELT101(TRI-BANG)
ORDER T.K. Jayaraman, Member (T)
1. This appeal has been filed against Order-in-Appeal No. 152/2004 dated 28.12.2004 passed by the Commissioner of Customs (Appeals), Bangalore. The appellants imported Copper Clad Laminates and paid provisional anti-dumping duty vide Notification No. 141/2003 dated 19.9.2003. Based on the recommendation of the designated authority for withdrawal of provisional anti-dumping duty, the said Notification 141/2003-Cus was rescinded vide Notification No. 25/2004-Cus. dated 22.1.2004. Consequent to the above rescission, the appellant filed refund claim. The refund claim was rejected in view of the following words appearing in the rescinding Notification except as respects things done or omitted to be done before such rescission". The Commissioner (A) upheld the Order of the lower authority and passed the impugned order. The appellants have strongly challenged the impugned order.
2. Shri T.R. Rajesh Kumar, learned Consultant urged the following points.
(i) in respect of the same issue, Chennai authorities have sanctioned the refund.
(ii) The above order of Chennai has not been appealed by the Department and therefore, has attained finality in terms of the following decisions.
a. UOI v. Sathish Panalal Shah b. CIT v. Shivsagar Estate 2002 (ITR) 59 (SC) c. Jayaswals Neco Ltd. v. CCE 2006 (73) RLT 230 (SC) d. Indian Oil Corporation v. CCE 2006 (202) ELT 37 (SC) e. CCE v. Amar Bitumen & Allied Products P. Limited 2006 (202) ELT 213 (SC) f. Boving Fouress Limited v. CCE 2006 (202) ELT 389 (SC)
(iii) The impugned order is against Section 9A(2), Rule 21(3) and the order of the designated authority, which allows refund of provisional anti-dumping duty on the final finding that no anti-dumping duty should be imposed.
3. The learned departmental representative Shri Anil Kumar reiterated the impugned order and urged that the Notification does not allow refund of provisional anti-dumping duty already paid.
4. We have gone through the records of the case carefully. Rule 21(3) of Customs Tariff (Anti-Dumping Duty on Dumped Articles) Rules, 1995 reads as follows: If the provisional duty imposed by the Central Government is withdrawn in accordance with the provisions of Sub-rule (4) of Rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the "importer". The above rule is very clear. When the provisional antidumping duty imposed is withdrawn by rescinding the Notification, then the amount collected as provisional duty shall be refunded to the importer. Notification No. 25/2004-Cus dated 22.1.2004 is the rescinding Notification. At the end of the Notification the following words appear "except as respects things done or omitted to be done before such rescission." The lower authorities interpret the above words to mean that the provisional anti-dumping duty already paid cannot be refunded. On going through the above words, we are unable to derive an interpretation as given by the lower authorities. Moreover, on similar issue the Chennai Customs have granted refund order, which has been accepted by the department. In terms of the case laws cited supra, the department having accepted the principles laid down in earlier cases cannot be permitted to take a different stand. The provisions of Rule 21(3) are very clear and unambiguous. In view of the above, we do not find any merit in the impugned order, hence we set aside the same and allow the appeal with consequential relief.
(Pronounced in Open Court on 16. JAN 2007)