COMMISSIONER OF CUSTOMS Vs. KOHINOOR INDIA LTD.

JUDGEMENT

(1.) LEARNED Commissioner (Appeals) has granted refund to the respondent holding that Notification No. ., dated 31 -1 -2007 issued by the Department of Revenue, Ministry of Finance shall have retrospective application to make respondent eligible to get refund of anti -dumping duty paid in terms of Notification No. ., dated 1 -9 -2005. He totally ignored the bar of unjust enrichment applicable to the refund while adjudicating authority held that refund under Section 9AA of Customs Tariff Act, 1975 is subjected to sub -section (8) of Section 9A of the said Act for which Section 27 of the Customs Act, 1962 applies to the case of refund arising out of anti -dumping duty law. Learned adjudicating authority thoroughly examined refund application of the respondent on 27 -7 -2007 and found that anti -dumping duty was paid prior to 11 -8 -2006. Respondent's certificate from the CA did not get appreciation by him. He dismissed refund claims on the issue of time -bar.

(2.) WE have examined the order of lower authorities. Anti -dumping duty was levied on subject goods exported from the subject country in terms of Notification No. ., dated 1 -9 -2005. Duty so paid underwent reduction in terms of Notification No. , dated 31 -1 -2007. Background of reduction was attributable to the judgment of the Tribunal in the case of Apar Industries Ltd. v. Designated Authority reported in : 2006 (204) E.L.T. 180 (Tri. -Del.). In Paras 6 and 7 of the judgment, the Tribunal held that appeal filed by appellant/exporter/importer was allowed to the extent that anti -dumping duty was imposed vide Notification No. ., dated 1 -9 -2005 for the import of subject goods from Korea will be collected at the rate of US $ 38.73 instead of US $ 138.39 per MT and the impugned notification will accordingly amended by the Central Government. The reduction so ordered gave rise to the notification amending rate of duty, as a result of which, respondent filed 9 refund applications before adjudicating authority.

(3.) WE have carefully examined the provision relating to refund of antidumping duty which is mandate of Section 9AA read with Section 9A of the Customs Tariff Act, 1975. The provision of Section 27 of Customs Act, 1962 being applicable to the refund of anti -dumping duty by virtue of amendment of Finance Act, 2000, respondent has to undergo the test of unjust enrichment to get refund. There is no shortcut to that process of law. Therefore mere production of CA certificate does not ipso facto grant refund to the respondent unless entire material showing no duty burden passed on to the buyer is adduced by the respondent before adjudicating authority. So far as bar of limitation is concerned, Notification No. , dated 31 -1 -2007 gave rise to the refund. That shall be the date to calculate the limitation. Accordingly, learned Authority shall look into all the refund applications in accordance with law taking the date as 31 -1 -2007 to be the date applicable.