TMI Blog2010 (3) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order could be made until matter was settled. An adjudication authority found that anti dumping duty was not payable. No assessment order required to be passed. - 314 of 2009 with 42 of 2009 - - - Dated:- 25-3-2010 - Sengupta and Kalidas Mukherjee, JJ. REPRESENTED BY: Shri Roy Chowdhury, for the Appellant. Shri Dutt, for the Respondent. [Order]. The Court: - This appeal was against the judgment and/or order of the learned Single Judge of this Court dated 16 th September, 2009 by which relief, as prayed for, was granted to the petitioner. 2. The short fact, which arises for consideration, is set out hereunder: The writ petitioners-respondents filed a writ petition being W.P.No.1778 of 2000 on 19th July, 2000 challenging show cause notice for short levy in respect of five consignment of KHS-68.During pendency of this writ petition anti dumping duty was imposed on the said imported materials. So another writ petition being W.P.No.2772 of 2001 was filed challenging the said order imposing duty, in or about 2001. The said writ petition [hereinafter referred to as the "earlier writ petition"] was admitted by the learned Single Judge of this court and stay was grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... internal Appellate Authority followed by the Revisional Authority under Customs Act unsuccessfully. Thereafter, an appeal had been preferred before the Tribunal concerned, where the application for stay was filed but stay of order was not obtained. 6. On the aforesaid backdrop of the facts when the said order was not stayed, the petitioners/respondents filed a writ application for enforcing the said order of the said Assistant Commissioner for payment of interest as calculated by him. The learned Trial Judge did not interfere with the said order of the Assistant Commissioner for payment of interest as calculated by him. From the narration of the fact as stated above it appears to us that the parties are fighting for the claim of interest as admittedly principal amount has been refunded. In terms of the judgment of Justice Pal the Assistant Commissioner of Customs has decided the question of payment of interest and also the rate thereof. He has while concluding the matter passed the order as follows :- "I, therefore, sanction Rs. 20,13,991/- only as interest on delayed refund of Rs. 42,66,418/- @ 9% to Dilip Kumar Jain". 7. It is very clear that the said Commissioner has not as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to understand whether the merger doctrine will be applied or not. "The appeal succeeds. The appellant would be entitled to claim for refund of the duty so paid by him under protest [emphasis supplied]. If such application for refund is made the authority must dispose of the same in accordance with the observations made within a period of one month from the date of making such application." It is clear that earlier interim order has not been vacated or modified rather by implication it is accepted. While passing interim order the Division Bench earlier ruled that in the event the appeal succeeds refund would be with interest at the prevailing bank rate. 11. Therefore, we are unable to accept the submission of Mr. Roy Chowdhury that by final order the interim order has been varied as appellant has been asked to make an application for refund and which obviously has to be dealt with in accordance with the provisions of the statute. We think that by the final order mere methodology of claim of refund with interest has been provided. 12. He further submits that the order passed by the Assistant Commissioner is dehors the provision of law. In support of his argument he has cited d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Hence, pre-condition is that there must be an order of assessment of duty payable and then there must be a payment pursuant to such order of assessment or is borne by any other person voluntarily. 16. Factually in this case as we have noted that at the very beginning the respondent challenged the attempt of the department to impose the anti dumping duty and before such assessment order could be passed the challenge was made filing a writ petition. As such the Learned Single Judge later on when payment was made under protest pursuant to order of assessment during pendency of the challenge, in order to secure the interest of the revenue asked to make a deposit of the amount of anti dumping duty with the Central Government Advocate on Record. The said amount was lying deposited. Later in terms of the Division Bench order of this Court the said amount so deposited was directed to be made over. We feel it expedient to quote the said portion of the Division Bench order as follows ;- "But the question of granting any interim order does not arise. Since question of revenue is involved the appellant must go on paying the anti-dumping duty to the respondents subject to the condition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made. 19. The decision of the Supreme Court reported in 1996(84) ELT 401 (S.C.) UNION OF INDIA vs. KIRLOSKAR PNEUMATIC COMPANY has been rendered on the fact where admittedly refund is sought to be made and interest thereon is sought to be claimed clearly in relation to order of assessment under Section 27 of the Customs Act. Putting it otherwise the said judgment will be applicable in a case when there has been an admitted case of order of assessment and payment of duty made, and further refund is claimed. We think that the said judgment is not of much assistance to take note in this matter. 20. Turning to the question of rate of interest, it is argued by Mr. Roychowdhury that the rate of interest or claim of interest as a whole has to be governed and guided by Section 27A of the said Act. We do not find any force in this argument for the simple reason that we have held that Section 27 in the present facts and circumstances has no application for the claim of interest of the petitioner has arisen not from the statutory provision but from the order of the Court viz. the Division Bench judgment as quoted above and the same has not been varied and/or discharged and it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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