ISPAT INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS
LAWS(CE)-2015-2-85
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on February 10,2015

ISPAT INDUSTRIES LTD. Appellant
VERSUS
COMMISSIONER OF CUSTOMS Respondents


Referred Judgements :-

COLLECTOR OF CUSTOMS V. PHOENIX OVERSEAS P. LTD [REFERRED TO]
COLLECTOR OF CENTRAL EXCISE V. EASTERN AEROMATICS [REFERRED TO]
J.C.T. LTD. V. CCE [REFERRED TO]
COMMISSIONER OF CUSTOMS V. HINDALCO INDUSTRIES LTD [REFERRED TO]
CARRIER AIRCON LTD. V. CCE [REFERRED TO]
UNION OF INDIA VS. SOLAR PESTICIDE PRIVATE LIMITED [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE DELHI VS. CARRIER AIRCON LTD [REFERRED TO]
BUSSA OVERSEAS AND PROPERTIES PVT LTD VS. UNION OF INDIA [REFERRED TO]
COLLECTOR OF C EX VS. SWASTIK COATERS PVT LTD [REFERRED TO]
EXTRUSION PROCESSES LTD VS. COLLECTOR OF CENTRAL EXCISE [REFERRED TO]
COLLECTOR OF CENTRAL EXCISE VS. SUNITA TEXTILES LTD. [REFERRED TO]


JUDGEMENT

ASHOK JINDAL - (1.)THE appellant is in appeal against the impugned orders wherein the Commissioner (Appeals) has rejected the refund claim along with interest which has been allowed by the adjudicating authority.
(2.)The brief facts of the case are that the appellant is an importer of bulk quantity of iron ore pellets coke and other raw material through the Dharamtar port. Due to inadequate draft at times, the mother vessel is unable to reach the jetty and has to discharge cargo at Bombay Floating Light, from where daughter vessel carried the cargo up to the jetty at Dharamtar. Therefore, a dispute arose on the issue whether the expenses incurred for carrying the goods discharged at Bombay Floating Light to Dharamtar jetty through barge/daughter vessel were includible in the assessable value for the purpose of calculating customs duty, being cost of transportation. This Tribunal confirmed the demand by upholding that for the period January, 1995 to January, 1997 the said transportation charges are includible. The said order was challenged by the appellant, before the hon'ble apex court. The show -cause notices were issued to the appellant for demand of customs duty on barge charges for the period 1994 -95 to 1998. This Tribunal on May 25, 2004 held that the said barge charges are not includible in the assessable value of the imported goods. The said order was challenged by the Revenue before the hon'ble apex court. During the pendency of these appeals, the appellant was compelled to pay duty component on barge charges, which the appellant paid under protest. On September 29, 2006, the hon'ble apex court held that in no uncertain terms, that the barge charges were not includible in the assessable value of imported goods. Thereafter, the hon'ble apex court ordered as under:
"Any amounts collected by the Revenue as duty on barge charges shall, be refunded forthwith to the assessee with statutory interest from the date of payment to the date of refund, which must be within three months from today. No costs."

The Revenue filed a review petition which was dismissed on October 11, 2007 and also filed a curative petition which was also dismissed on November 26, 2008.

(3.)PURSUANT to the decision of the hon'ble apex court dated September 29, 2006, on December 1, 2006, the appellant filed a refund claim of Rs. 4,32,03,516 and Rs. 2,86,47,254 seeking refund of amounts paid towards customs duty on barge and stevedoring charges. Thereafter, a show -cause notice was issued to the appellant on May 12, 2009 wherein the amount of refund was calculated to Rs. 6,44,96,857 against the amount claimed by the appellant and also to show cause why not the said refund claim not to be sanctioned in accordance with the provisions of section 27(2) of the Customs Act, 1962. The said show -cause notice was replied by the appellant and submits that as this refund claim pertains to the period from 1994 -95 to 2005 -06, therefore, the provisions of bar of unjust enrichment are not applicable for the period prior to July 13, 2006. It is also submitted that the selling price were market driven and, therefore, as per the decision in the case of Hindustan Copper Ltd. [1998] 9 SCC 708, the appellant is entitled for refund claim. It is further submitted that the appellant has produced certificate issued by the chartered accountant as well as cost accountant certifying that the duty in dispute paid was not included in the cost of production. It is also submitted on behalf of the appellant before the Assistant Commissioner that the appellant are operating in losses, therefore, the question of passing on incidence of duty does not arise, as held by the hon'ble apex court in the case of Living Media India Ltd. : [1998] 104 ELT 3 (SC).
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