COMMISSIONER OF CUSTOMS Vs. CHENNAI GASES PVT. LTD.

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after rejecting the Revenue's application for stay of operation of the impugned order, I proceed to deal with the appeal.

(2.) THE assessee (respondent) had imported a consignment of 'Calcium Carbide' and obtained clearance thereof under Bill of Entry dated 03.05.1999 on payment of duties of Customs including anti -dumping duty. The above import was from China and antidumping duty was leviable on imports from China at the rate of Rs. 499/ - per tonne under the relevant Notification. The importer could not produce the Certificate of Origin of the goods. Imports of like goods from Korea, during those days, were chargeable to anti -dumping duty at the rate of Rs. 873 per tonne. In the absence of the above certificate, the Customs authorities levied anti -dumping duty on the subject goods at the " Korean rate". Later on, the assessee obtained the Certificate of Origin of the goods (indicating China as the Country of Origin) and on its strength filed an application for refund of the excess anti -dumping duty paid by them. This refund claim was rejected by the original authority on the ground of unjust enrichment. In an appeal preferred against the order of that authority, the assessee obtained a remand order from the Commissioner (Appeals), which directed the original authority to pass a fresh order after due verification of documents, to ascertain whether the refund claim was hit by unjust enrichment. Acting upon the remand order of the appellate authority, the original authority passed a fresh order holding, after verification of documents, that the refund claim was barred by unjust enrichment. Accordingly, the anti -dumping duty amount (Rs. 26,395/ -) was credited to the Consumer Welfare Fund. Aggrieved, the assessee again approached the Commissioner (Appeals) and the latter accepted their contention that the principle of unjust enrichment was not applicable to their claim for refund of anti -dumping duty. Thus, they obtained a favourable order sanctioning cash refund of duty. Hence the present appeal of the Revenue, wherein the chief ground of challenge against the impugned order is that the provisions of Section 27 of the Customs Act were applicable to the subject claim for refund of antidumping duty in view of the amendments brought to Section 9A of the Customs Tariff Act by the Finance Act, 2000. The appellant has also claimed support from the Supreme Court's judgment in Mafatlal Industries Ltd. v. Union of India, 1007 (89) E.L.T. 247 (S.C.), wherein it was, inter alia, observed by their Lordships that the law of unjust enrichment in India would apply not only to tax refund claims but also to money claims of all hues and shades against the State where the claimant might have compensated himself from some other source.

(3.) LD . SDR reiterates the above grounds. Ld. Consultant for the assessee submits that Sub -section 8 of Section 9 A of the Customs Tariff Act, which made the relevant provisions of the Customs Act applicable to refund of anti -dumping duty, was inserted in the statute book with effect from 12.05.2000 (date, on which the Finance Act, 2000 came into force) only and has no retrospective effect. These provisions cannot be applied to a claim for refund of anti -dumping duty paid on 03.05.1999. Ld. Consultant has relied on the Tribunal's Larger Bench decision in Caprihans India Ltd. v. Collector of Customs, Bombay , wherein, in relation to a period prior to 12.05.2000, the Bench held that Section 27 of the Customs Act was not applicable to a claim of refund of anti -dumping duty and, accordingly, ruled out applicability of the doctrine of unjust enrichment to such a claim. In her rejoinder, ld. SDR refers to the Supreme Court's judgment in National Engineering Industries v. Commissioner of Central Excise, Jaipur 2005 (188) E.LT. 471 (S.C.), wherein it was held, on the facts of that case, that the question of grant of refund of Central Excise Duty arose only after the Tribunal's decision on the duty liability of the claimant.