Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Surya Roshni Ltd. on 7 January, 1999
Equivalent citations: 1999(112)ELT938(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The appeal by the Commissioner is against the order of the Collector (Appeals) holding that importer is entitled to the duty refund of customs duty paid on hot rolled steel coils imported by it.
2. We have heard the departmental representative. Although the adjournment is requested on behalf of assessee, we do not consider that such adjournment requires to be granted.
3. In the order impugned in the appeal the Collector (Appeals) overruled the order of the Assistant Collector holding that assessee was entitled to receive the amount of customs duty paid in excess and claim for refund before the Assistant Collector. The Assistant Collector had found that six of the refund applications were barred by limitation and three premature on the ground that assessments were provisional and not finalised. He also ordered of amount held to be refundable to be paid to the Consumer Welfare Fund on the ground that the claimant had not shown that the incidence of duty claimed as refund has not been transferred to any other person. The finding of the Collector (Appeals) that the claims were not barred by limitation is not challenged before us. The finding that the four claims were not premature and the further finding that the amount of refund sanction in the other three claims should be paid to the importer are challenged.
4. The contention with regard to the first issue is that the assessment was provisional and therefore till they were finalised claim would be prematured. Collector (Appeals) had noted that the duty had been paid provisionally under orders of the Gujarat High court which the importer had approached. He noted that this was not a case of provisional assessment under Section 18 of the Act. The question which was under challenge in the writ petition before the High Court was whether the goods was classifiable under Heading 7313.10 as claimed by the department or Heading 7310.08 as the importer claimed. The order of the High Court was only that the petitioners "will pay duty provisionally under protest pending its finalisation by the Assistant Collector and if necessary pending appeal before the appellate authority". Thus Collector (Appeals)'s finding that this is different from provisional assessment under Section 18 and that it had not been ordered for any of the reasons specified in that section is correct.
5. The order of the Court automatically came to an end from the moment classification was decided in favour of the importer or alternatively issue was decided by the Collector (Appeals). It is not contented that this has not happened when the claim was made. We therefore see no reason to interfere.
6. The other contention which the departmental representative makes, is that the judgment of the Bombay High Court in Solar Pesticides India Ltd. v. U.O.I. -1992 (57) E.L.T. 201 is under appeal to Supreme Court. It is no doubt true, as he says, while challenging the application for stay of the operation of the order, the Court directed the respondent before it to execute a bank guarantee of 50% of the amount. However, the operation of the order of the Bombay High Court has not been stayed and the ratio will be binding. We therefore see no reason to not apply it.
7. The cross-objection filed by the importer seeks orders of payment of interest on refund at market rates on the amount as due consequent on the Collector (Appeals) order. At the time when the Collector (Appeals) passed the order there is no provision in the Act for payment of such refund. Cross-objection cannot be entertained on that ground. However, the question of payment of interest may be decided in accordance with the provision of Section 27A of the Act, if applicable.
8. Appeal and cross-objection accordingly dismissed.