Custom, Excise & Service Tax Tribunal
Cc, Icd, New Delhi vs Kohinoor India Ltd on 6 February, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.2
Date of hearing/Decision: 06.02.2014
Appeal No.C/667/2008
(Arising out of OIA No.56-59/Cus/REV/LDH/2008 dated15.3.08 passed by CCE (Appeals), Chandigarh)
CC, ICD, New Delhi Appellant
Vs.
Kohinoor India Ltd. Respondent
Appeal No.C/668/2008 CC, ICD, New Delhi Appellant Vs. Kohinoor India Ltd. Respondent Appeal No.C/669/2008 CC, ICD, New Delhi Appellant Vs. Kohinoor India Ltd. Respondent Appeal No.C/670/2008 CC, ICD, New Delhi Appellant Vs. Kohinoor India Ltd. Respondent Present for the Appellant: Shri Sudhir Malhotra, Advocate Present for the Respondent: Shri V.P.Batra, DR Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr.Manmohan Singh, Technical Member FINAL ORDER No.50801-50804/2014 PER: D.N.PANDA Appeal No.C/667/2008 Learned Commissioner (Appeals) has granted refund to the respondent holding that Notification No.11/2007-Cus dated 31.1.2007 issued by the Department of Revenue, Ministry of Finance shall have retrospective application to make respondent eligible to get refund of anti-dumping duty paid in terms of Notification No.78/2005-Cus dated 1.9.2005. He totally ignored the bar of unjust enrichment applicable to the refund while adjudicating authority held that refund under section 9AA of Customs Tariff Act, 1975 is subjected to sub -section (8) of section 9A of the said Act for which section 27 of the Customs Act, 1962 applies to the case of refund arising out of anti-dumping duty law.
2. Learned Adjudicating authority thoroughly examined refund application of the respondent on 27.7.2007 and found that anti-dumping duty was paid prior to 11.08.2006. Respondents certificate from the CA did not get appreciation by him. He dismissed refund claims on the issue of time bar.
3. We have examined the order of lower authorities. Anti-dumping duty was levied on subject goods exported from the subject country in terms of Notification No.78/2005-Cus dated 1.9.2005. Duty so paid underwent reduction in terms of Notification No.11/2007 dated 31.1.2007. Background of reduction was attributable to the judgement of the Tribunal in the case of Apar Industries Ltd. vs. Designated Authority reported in 2006 (204) ELT 180 (Tri.-Del.). In para 6 and 7 of the judgement, the Tribunal held that appeal filed by appellant/exporter/importer was allowed to the extent that anti-dumping duty was imposed vide Notification No.78/2005-Cus dated 1.9.2005 for the import of subject goods from Korea will be collected at the rate of US$ 38.73 instead of US$ 138.39 per MT and the impugned notification will accordingly amended by the Central Government. The reduction so ordered gave rise to the notification amending rate of duty, as a result of which, respondent filed 9 refund applications before adjudicating authority.
4. While appellant Revenue supported adjudication order, respondent supported the order of learned Commissioner (Appeals).
5. We have carefully examined the provision relating to refund of anti-dumping duty which is mandate of section 9AA read with Section 9A of the Customs Tariff Act,1975. The provision of section 27 of Customs Act, 1962 being applicable to the refund of anti-dumping duty by virtue of amendment of Finance Act, 2000, Respondent has to undergo the test of unjust enrichment to get refund. There is no shortcut to that process of law. Therefore mere production of CA certificate does not ipso-facto grant refund to the respondent unless entire material showing no duty burden passed on to the buyer is adduced by the respondent before adjudicating authority. So far as bar of limitation is concerned, Notification No.11/2007 dated 31.1.2007 gave rise to the refund. That shall be the date to calculate the limitation. Accordingly, learned Authority shall look into all the refund applications in accordance with law taking the date as 31.1.2007 to be the date applicable.
6. In the result, the order of the Commissioner (Appeals) is set aside and appeal is remanded to the adjudicating authority to grant fair opportunity of hearing to the respondent to satisfy on the bar of unjust enrichment and pass appropriate orders.
Appeal No.C/668,669 & 670/2008
7. The issue in these appeals is also similar to the issue already dealt in appeal No.C/667/2008 except peculiar fact that in these three appeals both the authorities below allowed the refund for which Revenue is aggrieved and come up before Tribunal in these appeals. However, we order that in these three appeals also the respondent has to meet the test of unjust enrichment in the manner directed above, and participate in the hearing before adjudicating authority for passing appropriate orders.
8. Learned DR opposed our proposal above on the ground that this respondent not being before the Tribunal in the anti-dumping case of Apar Industries Ltd. vs. Designated Authority reported in 2006 (204) ELT 180 (Tri.-Del.), they are not entitled to refund following the judgement of Apex Court in the case of Mafatlal Industries Ltd.-1997 (89) ELT 247 (SC) holding that a party before a court is only entitled to the relief given to that party and not a stranger who seeks to get the benefit of the judgement.
9. We agree with the proposal of the Revenue in so far as common law is concerned. But so far as anti-dumping duty is concerned, levy being goods specific and country specific, the rate of levy reduced by Notification is applicable at the respective point of time to grant refund subject to bar of unjust enrichment.
10. In the result all four appeals are remanded to the adjudicating authority.
(Dictated & pronounced in the open court)
(MANMOHAN SINGH) (D.N.PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
mk
5
8
Appeal No.C/667-670/2008