COMMISSIONER OF CUSTOMS Vs. MARK AUTO INDUSTRIES LIMITED

JUDGEMENT

(1.) THIS appeal has been filed by the Revenue. The facts of the case are that the respondents imported 240.855 MTs of Cold Rolled Stainless Steel Sheets and cleared the same from warehouse on payment of Custom of Customs duty as well as Anti -dumping duty (ADD for short) imposed on them provisionally in terms of Notification No. -Cus dated 05.12.2002. On the basis of final ADD Notification, the importers filed refund claim of Rs. 86,12,218/ - on account of refund of excess payment of ADD, interest, paid on excess ADD payment, refund of interest on excess additional duty (CVD), refund of excess payment of SAD and interest on the total amount of excess paid by the respondents/ importers. Adjudicating authorities have held that the respondents are entitled for refund of Rs. 55,27,801/ - and the refund on anti -dumping duty is governed by Section 9A(2) of the Customs Tariff Act, 1975 and not by the provisions of Customs Act, 1962. Therefore, the doctrine of unjust -enrichment will not apply in this case and interest on refund of Anti -dumping duty and SAD or CVD is not admissible under Section 27 of Customs Act, 1962. The admissible amount of refund was sanctioned by the Assistant Commissioner and against the said order both, importer and department had filed appeals before Commissioner (Appeals) and Commissioner (Appeals) rejected the appeal of the Revenue and partially allowed the appeal of importer holding that importers are eligible for refund of interest paid on excess payment of ADD, due to late clearance of goods from the warehouse and the same was paid to them subsequently. Commissioner (Appeals) further held that provisions of Section 27 of Customs Act will not be applicable for such refunds. He also held that refund of ADD is governed by Section 9A(8) of Customs Tariff Act, 1975 and not by Section 27 of Customs Act, 1962 and therefore, provisions of unjust -enrichment would not apply. Aggrieved with the same, Revenue is in appeal before us.

(2.) THE main contention of the Revenue is that the impugned order is not proper, legal and correct and has relied upon the decisions in the case of Caprihans India v. Commissioner of Customs, Bombay reported as : 2001 (129) ELT 162 and in the case of DCW v. Commissioner of Customs, Trichy reported as, 2002 (147) ELT 1003 (Tri - Chennai) and submitted that Commissioner (Appeals) had inter -alia held that provisions of Section 9A(2) and Section 9A(8) of Customs Tariff Act, 1975 are mutually exclusive. Provisions of 9A(2)(b) and are similar to the provisions of refund arising out of finalization of provisional assessment as stipulated in Section 18(2) of Customs Act, 1962 and in such a situation, provisions of Customs Act 1962 will not be applicable. Revenue has also relied upon the decision in the case of Busa Overseas & Properties Pvt. Limited, 2003 (158) ELT 315 (Bom.) wherein it was held that refund on account of finalization of assessment has to pass the test of unjust enrichment and the same has been upheld by the Hon'ble Apex Court and therefore, the test of unjust enrichment is applicable in this case also. Revenue also relied upon the decision of the Hon'ble Apex Court in the case of Sahakari Khand Udyog Mandal Limited upholding the same view that in case of refund, the test of unjust enrichment is applicable. Revenue further submitted that it is well settled where a claim for refund of any duty or tax paid arises for consideration of the authorities apart from the merits of the claim and even if on merits it is found to be a justified claim, the principle of unjust enrichment has also to be kept in view before directing the refund. Hence, the doctrine of unjust enrichment is applicable in this case and the impugned order is liable to be rejected. On the other hand, learned advocate for the respondents submitted that in this case the ADD was reduced retrospectively which amounts to provisional assessment and in that case, provisions of Section 27 of Customs Act, 1962 are not applicable in this case. He further submitted that although the provisions of Section 27 is not applicable but while sanctioning the claim of refund to the respondents, adjudicating authority has considered the test of unjust enrichment before passing the order.