Custom, Excise & Service Tax Tribunal
M/S.Dredging Corporation Of India vs Commissioner Of Customs, Kolkata on 5 November, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.Cus.Ap.113/07
(Arising out of Order-in-Appeal No.KOL/CUS/CKP/134/2007 dated 13.04.2007 passed by the Commissioner(Appeals) of Customs, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.K. GAULE, MEMBER(TECHNICAL)
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
1. Whether Press Reporters may be allowed to see
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
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Dredging Corporation of India
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs, Kolkata
Respondent (s)
Appearance:
Shri D.V.Subbha Rao, Advocate for the Appellant (s) Shri S.Misra, Addl.Commr.(A.R.) for the Respondent (s) CORAM:
Honble Shri S.K. Gaule, Member(Technical) Honble Dr. D.M. Misra, Member(Judicial) Date of Hearing:- 05.11.2012 Date of Pronouncement :- 05.11.2012 ORDER NO.
Per Shri S.K.Gaule.
1. Heard both sides.
2. Appellant filed this appeal against order-in-original No.77/06 dated 01.08.2006 whereby ld.Commissioner has set aside the lower adjudicating authoritys order and remanded the case to the lower adjudicating authority.
3. Briefly stated facts of the case are that appellant filed refund claim of Rs.11,32,81,147.18. The appellant imported Dredger Aquarius along with accessories vide bill of entry Sl.Nos.1746 dated 28.01.91, 1856 dated 29.01.91 and 01 dated 01.02.1991 respectively. The department charged duty on the spares and accessories on the ground that they are not part of the dredger machine. The lower adjudicating authority finally assessed the bill of entry by confirming the duty on the impugned goods. Aggrieved by the same, the appellant filed appeal before ld.Commissioner(Appeals), who vide his order No.Cal/Cus/119/93 dated 31.03.1993 confirmed the lower adjudicating authoritys order. Aggrieved by the same, the appellant filed appeal before this Tribunal. This Tribunal vide order No.A-891-KOL/2001 dated 13.09.2001 allowed the appeal of the appellant by holding that accessories and spares brought along with the dredger should be assessed at the rate applicable to the dredger. Consequent to this Tribunals order appellant filed refund claim. The ld.Assistant Commissioner of Customs for Appraising Refund Section vide order-in-original No.40/03 dated 21.03.2003 rejected the claim on the ground of limitation and on the ground of unjust enrichment. The Appellant challenged the same before ld.Commissioner(Appeals). Ld.Commissioner(Appeals) vide his order-in-appeal No.KOL/CUS/93/CKP/2003 dated 19.09.2003 directed the appellant for persuasion of their claim for consequential relief with the Commissioner of Customs(Port) as per the order of this Tribunal. Thereby the appellant made a request to ld.Commissioner of Customs(Port) vide their letter dated 22.10.2003 for immediate sanction of refund as they had paid the customs duty in March, 1991, moreover this Tribunal has long back passed order for grant of refund i..e on 13.09.2001. Ld.Commissioner of Customs(Port) asked to examine the question of unjust enrichment. Consequently ld.Assistant Commissioner of Customs, Appraising Refund Section vide order-in-original No.09/04 dated 14.01.2004 sanctioned the refund of Rs.11,32,81,147/-, however, he credited the amount to Consumer Welfare Fund. The appellant challenged the same before ld.Commissioner(Appeals), who vide order No.KOL/CUS/167/CKP/07 dated 11.06.2004 modified the impugned order to the extent that the lower authority should pass a judicious and cogent order regarding applicability of principle of unjust enrichment. Again lower authority vide order No.2/05 dated 17.01.2005 after sanctioning the refund claim credited the same to the Consumer Welfare Fund. Appellant again filed appeal before ld.Commissioner of Customs(Appeals), who vide his order No.KOL/CUS/68/2005 dated 23.03.2005 ordered the lower authority to examine the case in accordance with the provisions of law. Vide order-in-original dated 01.08.2006 ordered for crediting the refund for Consumer Welfare Fund on the ground that present contract price is higher than the previous one after importation of dredger and held that it has passed duty incidence to other. Appellant challenged the same before ld.Commissioner(Appeals) and ld.Commissioner(Appeals) remanded the case to the lower adjudicating authority to decide the case after taking into consideration all the case laws cited by the appellant. Hence the appeal.
4. The contention of the applicant is that they are public-sector undertaking and they are using the dredger along with accessories and spares for dredging purpose and they have not sold the dredger. The contention is that in case of public-sector undertaking the question of unjust enrichment will not apply. In support of their contention they placed reliance on CCE-Bangalore-II vs. Karnataka State Agro Corn. Products Ltd. -2006 (202) ELT 47 (Kar.) wherein it was held that the state undertakings represent the people of the country, therefore doctrine of unjust enrichment would not apply in the case of state undertakings. The contention of the appellant is that ld.Commissioner(Appeals) does not have power to remand in view of the amendment of section 128 of Customs Act, 1962 w.e.f. 11.05.2001. The Honble Supreme Court in the case of MIL India Ltd. vs. Commissioner of Central Excise, Noida reported in 2007 (210) ELT 0188 (SC) has held that power of remand has been taken away from Commissioner(Appeals) w.e.f. the amendment of section 35A of Central Excise Act, 1944 which is pari materia to section 129A of Customs Act, 1962.
5. Ld.A.R. appearing for the department contended that the decision of Honble High Court has been distinguished by this Tribunals decision in the case of Cement Corporation of India Ltd. vs. CCE-Rohtak 2007 (219) ELT 329 (Tri.-Del.) which has been affirmed by Honble Supreme Court as reported in 2008 (232) ELT A-107(SC).
6. In his rejoinder ld.Advocate appearing for the appellant submitted that this Tribunal has only distinguished the order of Honble Karnatake High Court and Supreme Court has only dismissed the SLP only on the ground of non-prosecution.
7. On a query from the Bench whether lower adjudicating authority has decided the aspect of refund order, the ld.Advocate appearing for the appellant submitted that ld.Assistant Commissioner of Customs has not decided the case after the order passed by the ld.Commissioner and they have not got any intimation of hearing so far.
8.1 We have carefully considered the submissions of both sides and perused the record. Vide the impugned order ld.Commissioner(Appeals) has ordered as under:-
At the same time, I am constraint to note that in the order in Appeal no.KOL/CUS/CKP/68/2005 dated 23.3.05, the Commissioner (Appeals) has categorically observed as under:-
..in case of any doubt the lower authority may seek Boards instruction (through proper channel) regarding applicability of Principle of Unjust Enrichment in the facts of the present case and that would be a positive approach to the issue, rather than distorting the facts & legal provisions repeatedly.
I do not find any such positive approach of the lower authority in the impugned order nor they would distinguish the same laws submitted by the appellant. The appellant has also submitted a few fresh case laws which were not submitted earlier to the lower authority.
In view of the above, I hold that the lower authority has failed to follow the instruction given in the order dated 23.3.05.
I set aside the impugned order & remand the case to the lower authority to initiate as per instruction in order dated 23.3.05 & to consider all the case laws submitted by the appellant and pass fresh order after following principles of natural justice.
The matter is remanded with above direction.
8.2 We find that the Honble Supreme Court in the case of MIL India Ltd. (supra) has held that the ld.Commissioner(Appeals)s power for remand has been taken away by the amendment to Section 35A with effect from 11.05.2001. In these circumstances, ld.Commissioner(Appeals)s order is set aside and the case is remanded to the ld.Commissioner(Appeals) for deciding the case himself. At this stage ld.Advocate appearing for the appellant submitted that this case is going on for last two decades. Therefore ld.Commissioner(Appeals) is directed to decide the case expeditiously preferably within 4(four) months from the date of receipt of this order. Needless to say a reasonable opportunity of hearing may be granted to the appellant. Appeal allowed by way of remand.
(Pronounced and dictated in the open court.) Sd/ sd/ (D.M.MISRA) (S.K. GAULE) MEMBER(JUDICIAL) MEMBER(TECHNICAL) sm 6 Appeal No.Cus.Ap.113/07