- (1.) This writ petition is filed seeking issuance of a writ of Certiorarified Mandamus to call for the records of the second respondent dated 25.4.2007 in File No.S24/10029/07-Refunds, to quash the same and to direct the said respondent to process and pay the refund claim of the petitioner entity to the tune of Rs. 6,48,084.52 with interest. By the proceedings under challenge, the second respondent declined to process the refund application on the ground that the original assessment order has to be lawfully modified or revised in favour of the petitioner/importer in order to seek the refund.
(2.) 2.1. The brief facts of the case are as follows: The petitioner imported Mulberry Silk Fabrics from China under Bill of Entry No.228652, dated 31.5.2006. The goods were assessed as per tariff applicable and provisional anti-dumping duty was also levied on the basis of Notification No.52/2006-Cus, dated 31.5.2006 . The above said notification was issued based on the preliminary findings of the Designated Authority, namely the Director General of Anti-Dumping. The relevant portion of the said notification reads as under: "Notification: 52/2006-Cus. dated 31-May-2006 Anti-dumping duty on Silk fabrics of weight 20 to 100 grams per meter, originating in, or exported from People's Republic of China Whereas in the matter of import of silk fabrics of weight 20 to 100 grams per meter falling under heading 5007 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), (hereinafter referred to as the subject goods), originating in or exported from People s Republic of China (hereinafter referred to as the subject country), the designated authority in its preliminary findings vide notification No. 14/20/2004-DGAD, dated the 27th April 2006, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 28th April 2006, has come to the conclusion that (i) the subject goods have been exported to India from the subject country below their normal value; (ii) the domestic industry has suffered material injury; (iii) the injury has been caused by the dumped imports from the subject country And Whereas, the designated authority has recommended imposition of provisional anti-dumping duty, pending final determination, on all imports of the subject goods originating in or exported from the subject country; Now, therefore, in exercise of the powers conferred by sub-section (2) of section 9A of the said Customs Tariff Act, read with rules 13 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the aforesaid findings of the designated authority, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under tariff items of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), the specification of which is specified in column (4) of the said Table, originating in the countries specified in the corresponding entry in column (5), and exported from the countries specified in the corresponding entry in column (6) and produced by the producers specified in the corresponding entry in column (7) and exported by the exporters specified in the corresponding entry in column (8), and imported into India, an anti-dumping duty which shall be equivalent to the difference between the amount specified in the corresponding entry in column (9), in the currency as specified in the corresponding entry in column (11) and per unit of measurement as specified in the corresponding entry in column (10) of the said Table, and the landed value of such imported goods in like currency per like unit of measurement." 2.2. Thereafter, in terms of the provisions of the Customs Tariff Act, 1975, the final anti-dumping duty was determined and notification No.121/2006-Cus., dated 26.12.2006 was issued, which reads as under: "Notification: 121/2006-Cus. dated 26-Dec-2006 Anti-dumping duty on Silk fabrics of weight 20 to 100 grams per meter, originating in, or exported from People's Republic of China. And whereas on the basis of the aforesaid findings of the designated authority, the Central Government had imposed provisional anti-dumping duty on the subject goods, vide notification of the Government of India in the Ministry of Finance (Department of Revenue), No.52/2006 Customs, dated the 31st May, 2006, published in Part II, Section 3, Sub-section (i) of the Gazette of India, Extraordinary, vide G.S.R. No. 329(E), dated the 31st May, 2006; And whereas the designated authority in its final findings vide notification No.14/20/2004 -DGAD, dated the 15th November, 2006, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 16th November, 2006, read with corrigendum No.14/20/2004-DGAD, dated 14th December, 2006, published in the Gazette of India, Extraordinary, Part I, section 1, dated the 15th December, has come to the conclusion that (a)the subject goods have been exported to India from the subject country below its normal value; (b)the domestic industry has suffered material injury; (c)the injury has been caused by the dumped imports from the subject country; and has recommended the imposition of definitive anti-dumping duty on imports of the subject goods originating in, or exported from, the subject country; Now, therefore, in exercise of the powers conferred by sub-section (1) of section 9A of the said Customs Tariff Act, read with sub-section (5) of the said section 9A and rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the aforesaid final findings of the designated authority, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under tariff items of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), the specification of which is specified in column (4) of the said Table, originating in the countries specified in the corresponding entry in column (5), and exported from the countries specified in the corresponding entry in column (6) and produced by the producers specified in the corresponding entry in column (7) and exported by the exporters specified in the corresponding entry in column (8), and imported into India, an anti-dumping duty which shall be equivalent to the difference between the amount specified in the corresponding entry in column (9), in the currency as specified in the corresponding entry in column (11) and per unit of measurement as specified in the corresponding entry in column (10) of the said Table, and the landed value of such imported goods in like currency per like unit of measurement". In the final notification, the quantum of anti-dumping duty was reduced as against the higher provisional anti-dumping duty collected on the goods cleared. 2.3. Based on the final notification, the petitioner made an application for refund of the excess anti-dumping duty on 16.1.2007 and that has been rejected by the impugned letter dated 25.4.2007, which reads as under: "Please refer to your refund claim against bill of entry No.228652/31.5.2006. Your refund claim was perused and it is found that the ground for the claim is towards non-availment of notification benefit. It is seen from the documents submitted by you that the re-assessment has not been done. An order of assessment given by the competent authority (Group assessing the bill of entry) can not be reviewed or modified by the Refunds Section as held by the Apex Court in the case of M/s.Super Cassette Industries Vs. Commissioner of Customs, 2004 163 ELT 116 and M/s.Priya Blue Industries Vs. Commissioner of Customs, 2004 172 ELT 145. Refund will arise only if such an order is lawfully modified or revised in your favour. In view of the above, the refund claim filed by you is not admitted being pre-mature. You are advised to approach the appropriate authority to get the bill of entry re-assessed appropriately or an order from the appellate authority. You will have an option of filing a fresh claim, along with original documents, after getting the assessment order lawfully modified to your benefit whereupon the refund claims will be examined on merits. In view of the above, your refund claim is returned herewith being pre-mature." and this order as above is under challenge before this Court.
(3.) Heard Mr.S.Krishnanadh, learned counsel for the petitioner and Mr.Mahadevan, learned Central Government Standing Counsel appearing for the respondents.;