COMMISSIONER OF CUSTOMS Vs. SHARMAN WOOLLEN MILLS

JUDGEMENT

(1.) THIS appeal has been filed by the Revenue. Apparently, in the stay application, the provision under which such an application has been made, is not indicated. In this application, the Revenue has prayed to stay the operation of the impugned order of Commissioner (Appeals) and to pass such order or orders as may be deemed fit and proper in the interest of natural justice.

(2.) ON being asked under which provision the said application has been filed, the learned authorized representative of the Department refers to Rule 41 of CESTAT (Procedure) Rules, 1982. Rule 41 of the said Rules is reproduced below: The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice.

(3.) THE learned authorized representative of the Department has contended that, the impugned order of Commissioner (Appeals) contains specific flaws in the sense that Acrylic Tow which was to suffer anti -dumping duty has been wrongly distinguished from Acrylic Fibre, in spite of the fact that the governing notification has made it clear that Acrylic Fibre also includes Acrylic Tow. No problem can stand the assault of sustained thinking. In the penultimate paragraph of the order, the Learned Commissioner (Appeals) has thought over in the following manner, which prima facie, appears reasonable to us at this stage: The further contention of the appellant that the duty in question was got deposited by the Department under pressure, after expiry of limitation period i.e the Bill of Entries were assessed from 19 -08 -2002 to 26 -08 -2002 and the duty was got deposited on 3 -12 -2003. I fully agree with this contention of the appellant in as much as the duty deposited after the expiry of one year were clearly time barred and further the show cause notice dated 31 -12 -2004 issue for recovery of said duty amount was also time barred, because it is neither a case of any suppression of facts nor any willful attempt to evade any duty when no duty is chargeable on the goods in question as held by the CESTAT in Para 5.2 of the order supra, which clearly says that anti -dumping duty imposed on Acrylic Fibre by Notification No. 81/97 -Cus. cannot be imposed on Acrylic Tow. Therefore, duty deposited by the appellant is refundable to them as the doctrine of unjust enrichment is not applicable when duty paid subsequent to clearance of goods. This view has been taken by the CESTAT in the case Gujrat State Fertilizer v. CCE .