GMMCO LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS matter arises for report of compliance with our Miscellaneous Order No. 455/2007 dated 17.5.2007, whereby we had set aside the Assistant Commissioner's order dated 22.3.2007 and directed him to implement our order dated 21.9.2004 within seven days and report compliance to the Bench on 28.5.2007. Shri K. Balakishan Raju, Assistant Commissioner of Customs (Group 5A), who was present in court on 17.5.2007, took notice and subsequently passed Order -in -Original No. 208/2007 dated 26.5.2007, which reads as follows:

(2.) LEARNED SDR submits that our final order and subsequent miscellaneous orders have been implemented by the Assistant Commissioner of Customs by passing the above order dated 26.5.2007. On the other hand, learned consultant for the assessee submits that the Final Order dated 21.9.2004 passed by this Bench has not been fully carried into effect inasmuch as the excess duty paid on 13 Bills of Entry has not been sanctioned for cash refund. It is submitted that the reason stated for not granting such sanction is not factually correct. The triplicate Bills of Entry had actually been submitted by the party. Learned Consultant, further, submits that the only reason for not sanctioning cash refund in respect of the relevant Bills of Entry was the 'bar of unjust enrichment' as noted in Assistant Commissioner's order dated 19.5.2003. Application of the bar of unjust enrichment having been ruled out by this Tribunal in its final order dated 21.9.2004 and subsequent miscellaneous orders, it is not open to the Department to refuse to sanction refund of the excess duty paid on 13 Bills of Entry, on the ground stated by the Assistant Commissioner in his order dated 26.5.2007. As a matter of fact, this amount of duty had also been transferred to the Consumer Welfare Fund as noted in the Assistant Commissioner's earlier order dated 19.5.2003, which had been passed in pursuance of the final order passed by the Tribunal's Delhi Bench on 25.8.2000. When the amount was so transferred, the department had no case that any triplicate Bill of Entry had not been submitted by the refund -claimant. Thus, learned consultant urges that the Assistant Commissioner be strictly directed to grant cash refund of the excess duty paid on the 13 Bills of Entry also. A further grievance raised by learned consultant is that there is no mention of the refund -claimant's right to obtain statutory interest on the amount of duty allowed as refund. It is submitted that the refund claims had been filed as early as in 2001 and, in any case, the refund was sanctioned (but amounts transferred to Consumer Welfare Fund) by the original authority on 19.5.2003, which, according to learned consultant, would be the date of finalization of provisional assessments, giving cause of action for refund of excess duty paid. In any event, according to learned consultant, the assessee is entitled to get interest on the amount of duty. It is prayed that appropriate direction be issued to the Assistant Commissioner in this behalf. We have heard learned SDR on the interest -related issue. He submits that the assessee has never claimed interest in any of his refund applications. It is also pointed out that the present order of the Assistant Commissioner is appealable and therefore the assessee has a remedy on all outstanding issues.

(3.) AFTER giving careful consideration to the submissions, we must quickly accept learned consultant's submission to the effect that the refusal to sanction cash refund of excess duty paid on 13 Bills of Entry on the ground of non -production of triplicate Bills of Entry by the claimant is unwarranted. In our final order dated 21.9.2004, we had specified the amount of duty claimed, by the assessee, to have been paid in excess on all the relevant Bills of Entry put together covering the period subsequent to 6.4.1994 and relating to imports through Air Cargo Complex. The bar of unjust enrichment pleaded by the Revenue was categorically ruled out by the Bench. It is also pertinent to note that, even prior to our final order dated 21.9.2004, the original authority had, in the context of implementing directions of the Tribunal's Delhi Bench, sanctioned refund of the entire amount of duty paid in excess on all the aforesaid Bills of Entry (amounting to Rs. 1,25,30,986/ -), albeit with the direction that the entire amount be transferred to the Consumer Welfare Fund. Had the said authority not found the refund claim to be barred by unjust enrichment, the entire amount would have been allowed as cash refund. Where we ruled out unjust enrichment in our final order dated 21.9.2004, the original authority had no option but to allow cash refund of the entire amount. In our subsequent miscellaneous orders dated 27.2.2007 and 17.5.2007, we urged that authority to implement our final order in this manner only. Now, to our dismay, the Assistant Commissioner, in his order dated 26.5.2007, says that 13 triplicate Bills of Entry had not been produced by the claimants and therefore refund of the excess duty paid thereon cannot be sanctioned. This part of the Assistant Commissioner's latest order cannot be said to be in compliance with our final order dated 21.9.2004 and miscellaneous orders dated 27.2.2007 and 17.5.2007. Unfortunately, the officer himself is not present before us to explain this lapse. Had the learned SDR not pleaded for mercy on his behalf, we would have recommended stringent action against the officer.