VIKRANT TYRES LTD. Vs. CC

JUDGEMENT

(1.) THERE is no representation for the appellants despite notice, nor any request of theirs for adjournment. The respondent is represented by learned SDR, who reiterates the findings and observations of the lower appellate authority and also relics on the Tribunal's Larger Bench decision in TTK -LIG Ltd. v. CC Chennai/New Delhi , wherein the referred issue was answered as under : Additional duty of Customs was leviable under Section 3 of the Customs Tariff Act, 1975 on the imported rubber, as on the date of importation, to the extent equal to the duly of excise levied as cess under Section 12 of the Rubber Act, 1947 on rubber produced/manufactured in India as on the said dale.

(2.) AFTER examining the records and hearing learned SDR, we find that the question arising for consideration in this case is the same as the one dealt with by the Larger Bench. The Larger Bench decision is in favour of the Revenue. However, we must take judicial notice of the Supreme Court's order in Civil Appeal No. D19381 of 2002 filed by the Commissioner of Customs, Chennai against the Final Order No. 1761/2001 dt. 29.11.2001 passed by this Bench in the case of Vikrant Tyres Ltd. v. Commissioner. This Bench in the said case had held that Cess under Section 12 of the Rubber Act read with Section 3 of the customs Tariff Act was not leviable on imported rubber. The above civil appeal filed against the said order was not pressed by the Commissioner of Customs, Chennai before the apex court and, accordingly, that appeal was dismissed. This would mean that the department has accepted the position that no Cess under Section 12 of the Rubber Act is leviable as Additional Duty of Customs under Section 3 of the Customs Tariff Act in respect of rubber imported into India. We also take judicial notice of the apex court's order in Civil Appeal Nos. 1970 -1981/2005 in the case of M.M. Rubber Co. v. Commissioner of Customs (Exports), Chennai. The said appeals were filed against an order of this Bench holding that Cess leviable under Section 12 of the Rubber Act was not leviable by the department as Additional Duty of Customs under Section 3 of the Customs Tariff Act in respect of imported rubber. Our order, however, had not considered a pending refund claim of the party claiming refund of the amount already collected from them by the department in respect of imported rubber under Section 3 of the Customs Tariff Act. Hence, the Hon'ble Supreme Court remanded the matter to us for considering the question whether the refund claim of M/s. M.M. Rubber Company is hit by the bar of unjust enrichment. The Hon'ble Supreme Court's order did not discuss the substantive issue in so many words. But, by remanding the case to the Tribunal for considering the refund claim of the assessee, their lordships were approving the view taken by this Bench on the said issue in the case of M.M. Rubber Co.

(3.) THE apex court's orders in the cases of Vikrant Tyres Ltd. and M.M. Rubber Co. were, apparently, not cited before the Tribunal's Larger Bench. We have got to follow the view taken by the apex court in preference to that taken by the Tribunal's Larger Bench. In the impugned order, learned Commissioner (Appeals) rejected the appellants' claim for refund of an amount of Cess paid on imported rubber towards a demand raised under Section 3 of the Customs Tariff Act, by holding the view that the party was liable to pay such duty. Hence there was no occasion for the appellate authority to enter into any enquiry on the aspects of time -bar and unjust enrichment. Now that we have held that the appellants had no liability to pay any duty of the above kind in respect of the rubber imported by them, their refund claim requires to be examined in further detail. For this purpose, we set aside the orders of the lower authorities and remand the case to the original authority which shall examine the question whether the claim was filed in time as also whether it was hit by the bar of unjust enrichment. The party shall be given a reasonable opportunity of being heard also.