ABAD INSULATION PVT. LTD. Vs. COMMISSIONER OF CUSTOMS
LAWS(CE)-2015-6-9
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 30,2015

Abad Insulation Pvt. Ltd. Appellant
VERSUS
COMMISSIONER OF CUSTOMS Respondents

JUDGEMENT

H.K.THAKUR,MEMBER (T) - (1.)THIS appeal has been filed by the Appellant with respect to the OIA No. 184/2014/Cus/Commr(A)/AHD, dt. 01.05.2014.
The issue involved as framed by the First Appellate Authority in Para 5 of the OIA dt. 01.05.2014 is whether the Appellant was correct in filing a refund claim vide letter dt. 26.04.2013 after a period of 2 years from the OIA No. 07/AC/ICD/IMP/2011, dt. 20.01.2011. The First Appellate Authority has rejected the refund claim on the basis of Hon'ble Apex Court's decisions in the case of Priya Blue Industries Ltd. Vs Commissioner of Customs (Preventive) 2004 (172) ELT 45 (SC) and Collector of Central Excise, Kanpur Vs Flock (India) Pvt. Ltd. : 2000 (120) ELT 285 (SC).

(2.)SHRI R. Subramanya, learned Advocate appearing on behalf of the Appellant argued that once the original refund claim of anti dumping duty was filed corrigendum to Notification No. 30/2011 -Cus, dt. 14.07.2010 was not issued as per F. No. 354/95/2010 -TRU, dt. 31.03.2011. That refund claim became due as a result of corrigendum dt. 31.03.2011. Therefore, the original assessment order and refund claim filed by the Appellant is not relevant. That after corrigendum dt. 31.03.3011, other refund claims filed by the Appellant with respect to anti dumping duty was sanctioned by the Department. Learned Advocate relied upon the case law of Hon'ble Delhi High Court in the case of Commissioner of Customs, ICD, New Delhi Vs Chandra Prabhu International Ltd. [ : 2014 (302) ELT 168 (Del)]. He made the Bench go through Para 11 & 12 of this case law to argue that Section 9AA of the Customs Tariff Act is a complete code for refund of anti dumping duty and that the provisions of Section 27 of Customs Act, 1962 will not be applicable. It was his case that the anti dumping duty paid by the Appellant initially at the time of clearance was without authority of law after corrigendum dt. 31.03.2011 was issued with respect to Notification No. 30/2011 -Cus, dt. 31.03.2011 and no time bar is applicable to deposits made without authority of law. Learned Advocate also argued that no Rules prescribing time limit under Rule 9AA(2)(i) of Customs Act, 1962 have been framed. That in the absence of any Rules framed with respect to limitation on refund of anti dumping duty, a reasonable period will be considered as appropriate for filing the refund claim. It was his case that the period taken by the Appellant to file the refund claim is a reasonable period for claiming refund.
(3.)SHRI T.K. Sikdar, learned Authorised Representative appearing on behalf of the Revenue argued that the Appellant has not contested the original assessment which has also been upheld by CESTAT and accordingly, the refund claim filed by the Appellant as time barred under Section 27 of Customs Act, 1962.
Heard both the sides and perused the case records. The refund claim of the Appellant has been rejected as time barred under Section 27 of the Customs Act, 1962 on the ground that the OIA passed by the First Appellate Authority was upheld by CESTAT in Appeal No. E/555/2011. In this regard, it is relevant that the Hon'ble Delhi High Court in the case of CC, ICD, New Delhi Vs Chandra Prabhu International Ltd. (supra) has held that the refund of anti dumping duty will be covered under the provisions of Section 9AA of the Customs Tariff Act and that the provisions of Section 9A(8) of the Customs Tariff Act has got only extremely restricted application. Para 11, 12 and 19 of this case law are relevant and are reproduced below: -

"11. The scheme of anti -dumping duty under the C.T.A. also? provides for refund claims. The mechanism for refund of the duty imposed provisionally under Section 9A(2) pending determination in accordance with Section 9A, is indicated in Section 9A(2)(b). The mechanism for refund of duty imposed under Section 9A(1) after final determination, if the importer can show that he has paid a duty in excess of the actual margin of dumping for the imported article, is indicated in Section 9AA. The Central Government is empowered to make rules to provide the manner in which the application for a refund claim can be made under Section 9AA under Section 9AA(2). This being the case, the mechanism for refund in the Customs Act under Section 27, for claim of refund per se, does not apply.

12. The applicability of Section 9A(8) to incorporate? Section 27 of the Customs Act, in the opinion of this Court, would be after the final determination of applicability of anti -dumping duty under Section 9A(1), only as far as may be applicable keeping in mind Section 9AA. This is because, Section 9AA appears to be a complete code for refund claims after final determination, given that the Central Government is empowered to make rules regarding the manner and the time within which claims for refund may be made, under Section 9AA(2) of the C.T.A. Thus, Section 9A(8) would operate to incorporate Section 27 of the Customs Act only as far as may be applicable, in absence of rules on limitation, until they are made/alongside the rules once made.

19. Section 27 of the Customs Act is to be incorporated? through this provision, as regards refund claims w.e.f. 1st Jan., 1995, only as far as may be applicable, i.e. as far as is not covered by Sections 9A and 9AA of the C.T.A. As concluded earlier, since Section 9AA of the C.T.A. is a complete code, Section 9A(8) has extremely restricted application in its allusion to provisions of the Customs Act, so far as may be in their application to the C.T.A. itself."

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