MARDIA CHEMICALS LTD. Vs. C.C., AHMEDABAD

JUDGEMENT

(1.) THIS is a miscellaneous petition filed by M/s Mardia Chemicals Ltd. in respect of the final Order No.c/1576/97 -B2 dated 23.4.97 passed by the CEGAT. In this order, the appeal of the party was allowed by setting aside the impugned order of the Additional Collector of Customs.

(2.) WE have heard Shri K.K. Anand, Advocate for the applicants and Shri M.P. Singh, JDR for the respondents. The learned counsel for the petitioner submits that this miscellaneous application is filed under Rule 41 of the CEGAT (Procedure) Rules, 1982. It is stated that in terms of this rule 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. The learned counsel for the appellant submits that consequent to the above order of the Tribunal, they has preferred a claim for refund of Rs.3,14,261/ - on 19.9.97 against the customs duty, fine and penalty paid by them in the above proceedings. However, the Assistant Commissioner issued a show cause notice dated 2.2.99 calling upon them to show cause why their refund claim should not be rejected. On consideration of their reply, the Assistant Commissioner of Customs vide his order dated 19.2.99 rejected the claim. It is contended that the impugned order was issued on 19.2.99 but the same was not served on them till 4.1.2001. It is stated that the refund claim has been rejected by the Assistant Commissioner only on the ground that the applicants had paid duty, find and penalty without any endorsement of protest and, therefore, their claim was time barred. It is stated that action of the Assistant Commissioner is not is not implementing of the order of the Hon'ble Tribunal is illegal and unauthorised and, therefore, by way of this miscellaneous petition they are praying for a direction to the Assistant Commissioner for forthwith implementation of the order passed by the Tribunal and of granting the refund. It is also requested that the Order -in -Original dated 19.2.99 passed by the Assistant Commissioner may be set aside. In support of his contention, the learned Advocate has relied on the following decisions: -

(3.) WE have carefully considered the above submissions. It is observed that the proceedings in the Final Order dated 23.4.97 of the Tribunal related only to the determination of the correct classification of the imported goods whether falling under heading 90.27 of the Customs Tariff as pleaded by the appellants or under 90.33 of the Customs Tariff as contended by the Department and the Tribunal in its order held that the impugned goods were correctly classifiable under 90.27. Consequently, the order appealed against was set aside and the appeal f the party was allowed. In this order, there is no reference to any amount to the refunded to the appellants. Consequently, however, the appellants as per their version -filed a refund claim which has been rejected by the Assistant Commissioner by way of a speaking order dated 19.2.99 passed by him. On these facts, we do not see any disobeyance of the order of the Tribunal by the Assistant Commissioner as the applicants would like to plead. The reliance placed by the appellants on the decisions of the tribunal in Garg Steel Industries and Karan Packaging Pvt. Ltd, (Supra) is misplaced. In the first case, the Assistant Commissioner had flouted the directions given in the remand order of the Tribunal in which he was directed to fix the value of damaged goods for granting abatement. Since the Assistant Commissioner did not follow these directions, the miscellaneous petition filed by the party was allowed by accepting the value as claimed by them and jurisdictional adjudicating authority was directed to pass a consequential order of refund. Similarly, in the second case, though the Assistant Commissioner granted the refund of Rs.1, lac to the appellants but adjusted this amount against the dues recoverable from his Company. In view of these facts, the miscellaneous petition filed by the applicant was allowed and the Assistant Commissioner directed to refund the amount with interest. However, in the present case, the facts are entirely different and the Assistant Commissioner has already passed a speaking order rejecting the refund claim of the party and, therefore, there is no question of directing him to recall the same and grant the refund to the applicants. The proper course for them would be file an appeal before the Commissioner (Appeals) against the impugned order of the Assistant Commissioner, as per law.