COMMR. OF CUS., VISAKHAPATNAM Vs. MARATHWADA REFRACTORIES LTD.

JUDGEMENT

(1.) THIS is a Revenue appeal arising from Order -in -Appeal No. 17/04, dated 30 -7 -2004 passed by the Commissioner (A), Guntur accepting the refund claim and setting aside the Order -in -Original directing the amounts to be credited to Consumer Welfare Fund by applying the principles of unjust enrichment. The findings recorded in Paras 6 -10 are reproduced hereinbelow.

(2.) I have perused the records of the case carefully and considered the rival contentions. The moot point in the instant case is the validity of application of the principle of unjust enrichment on anti -dumping duty and directing that the amount be credited to the Consumer Welfare Fund even when granting that the refund is admissible. On this aspect, the pronouncement of the Larger Bench in the case of Caprihans India Ltd. v. Collector of Customs, Bombay, reported in [2001 (129) E.L.T. 162 (Tri. - LB)] is rightly held by the lower authority to be inapplicable to the instant case since the tribunal ruling is applicable only to periods prior to 12 -5 -2000 [the date of enactment of Finance Act, 2000 (10 of 2000)]. This is because, vide Section 89 of the Finance Act, 2000; sub -section (8) was appended to Section 9A of the Customs Tariff Act, 1975; whereby the provisions of the Customs Act, 1962, the rules and regulations relating inter alia, to refunds is made applicable to the levy of ADD. The Bills of Entry in the current Appeal relate to periods after 12 -5 -2000.

(3.) THEREFORE , under statute, I find that to the extent of the application of the principle of unjust enrichment, the impugned order is justifiable. The matter of ADD on Fused Magnesia has now reached finality with the issuance of Notification No. 99/2003 -Cus., dated 1 -7 -2003 so as to rescind Notification No. 35/99 -Cus., dated 17 -3 -99. The CBEC has also clarified in Circular No. 75/2003 -Cus., dated 28 -8 -2003 issued from F. No. 523/8/2003 -Cus.(TU) that the anti -dumping duty on Fused Magnesia originating in or exported from China PR will stand withdrawn retrospectively from 1 -10 -99. Therefore, the Appellant is eligible to a refund subject to evidencing that there is no unjust enrichment.