SPIC LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE subject appeals have arisen for re -hearing today on the Tribunal re -calling its earlier order pronounced on 12.10.2006, allowing these appeals. On 12.10.06, after hearing both the sides, the appeals were allowed. On that day, the department had canvassed the dismissal of these appeals on the ground that the appellants had not filed refund claims after getting favourable orders in 1993 and 1996 from the Commissioner (Appeals) in their two appeals. The impugned order also had been passed on the same basis that the appellants had not filed fresh claims within six months of receipt of the orders of the Commissioner (Appeals). As it appeared that the claims initially filed by the appellant (and rejected by the original authority) were adequate to grant them relief on their getting favourable appellate orders, the impugned order deciding the party to be ineligible for refund was found to be incorrect. Accordingly, this Tribunal had allowed these appeals on 12.10.2006.

(2.) WHEN it was brought to my notice shortly afterwards that the appellants' claims had been pending when the Apex Court had passed judgment in the Mafatlal Industries Ltd. v. Union of India case, it appeared that the order pronounced on 12th Oct '06 was incorrect. In para 100 of the above judgement, the Hon'ble Supreme Court had ordered as follows: We take note of the fact that writ petitions/writ appeals/suits claiming ' refund of excise duties/customs duties may be pending as on today. They are liable to fail on the ground of maintainability by virtue of the law declared herein. Since the law is being declared and clarified by us now, we make the following directions : in cases where writ petitioners, writ appeals (by whatever appellation they are called) or suits (at whatever stage they may be, as on today) are pending as on today, and provided they have not already taken proceedings for refund under the Act, it shall be open to the petitioners/appellants/plaintiffs to file applications for refund under Section 11B within sixty days from today. If the applications are so filed by them, they shall not be rejected on the ground of limitation and shall be dealt with according to law. We make it clear that this direction applies only to petitioners/appellants/plaintiffs in pending writ petitions/writ appeals/suits (pending as on today), as explained hereinabove, and not to any others. The applications so filed under Section 11B shall be disposed of under Section 11B, as interpreted herein, and in accordance with law. It is. obvious that if any of such petitioners/appellants/plaintiffs have already taken proceedings for refund under the Act and having failed therein - either partly or wholly - have resorted to writ petition or suit, they shall not be entitled to the benefit of this direction. As the order pronounced by the Tribunal on 12.10.2006 seemed inconsistent with the above directions of the Apex Court, that decision is recalled for hearing on 03.11.06. The appeals were heard and orders reserved.

(3.) THE facts of the case are that M/s Spic Ltd., Chennai had imported two consignments of machinery under Bills of Entry dated 04.03.1991 and 08.08.1990. Though the importer had declared a certain classification for the imported goods, they had paid a higher amount of duty in terms of the assessment by the department adopting a different classification. Later on, they had filed refund claims for excess duty paid. The refund claims had been rejected. They had filed separate appeals against the two orders rejecting their refund claims and obtained favourable orders from the Commissioner (Appeals); on 14.06.1993 in respect of Bill of Entry dated 17.08.1990 and on 30.10.1996 in respect of Bill of Entry dated 04.03.1991. As per the Orders -in -Appeal, the importer was entitled to refund of Rs. 29,272/ - and Rs. 86,654/ -respectively subject to check of unjust enrichment. The importer did not file any refund claim after receiving the favourable orders in appeal though they kept on reminding the department for granting refund.