TMI Blog2015 (12) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... lied the Hon ble High Court’s Order. The adjudicating authority while sanctioning the refund had clearly brought out in his order dt. 8.4.2011, all aspects including the Hon'ble Supreme Court judgment by relied by Revenue in the case of Union of India Vs Indian Charge Chrome (1999 (8) TMI 69 - SUPREME COURT OF INDIA). - Revenue has power to review any order of the lower authority under Section 129B of Customs Act whereas in the present case the adjudicating authority had sanctioned the consequential refund as per the Hon'ble High Court order which attained finality. In this scenario, the Revenue has no valid grounds to say that the adjudicating authority has erred in sanctioning the refund both on merits as well as on unjust enrichment. Further, the LAA has no power to go beyond the High Court's order to set aside the refund sanctioned by L.A. The jurisdictional High Court Order is binding on the Revenue and the LAA and the appellant. - Decided in favour of assessee. - C/40793/2013 & C/40811/2013 - FINAL ORDER No.41589-41590/2015 - Dated:- 2-6-2015 - Shri R. Periasami, Technical Member And Shri Pradeep Kumar Choudhary, Judicial Member For the Petitioner : Shri Vijay Narayan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there is no stay granted by Hon ble High Court [DB] and directed the department to carry out the directions of the single member judge and directed to dispose the application of the petitioner of refund within the period of four weeks. Revenue preferred the Writ Appeal No.1686 of 1998 against the High Court s order 11.11.1998 and Writ Petition No.5299 of 1998. The Revenue s appeal nos.358 359/1997 and the present Writ Appeal No.1686 of 1998 both were pending before High Court. The Hon ble High Court [DB] in their Order dated 17.07.2000 dismissed the Writ Appeal No.358,359/1997 dismissed both the writ appeals and no SLP filed by the Revenue against the High Court s order. 5. The Hon ble High Court in their Order dated 13.10.2008 dismissed the second set of Revenue Appeal i.e., 1686 of 1998 and held that the order passed by the High Court in Writ Petition No.4566 4567 of 1987 has become final and directed the department to consider and dispose the refund application within a period of two weeks. The Hon ble [DB] also held that there is no reason to interfere with the order of the learned Single Member judge. 6. Revenue filed Review Application No.128 of 2009 against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck down part of the Notification No.306/86 denying the benefits to captive power plant. The department did not implement the High Court s order and preferred the writ appeal. The appellant had no other way but to approach the Hon ble High Court with Writ Petition No.5299 of 1998 with a prayer to direct the department to implement the Hon ble High Court s order. The Hon ble High Court allowed their writ petition and directed the department to implement its order. Since both the department s Writ Appeal Nos.358 359 of 1997 and another Writ Appeal No.1686 of 1998 were dismissed and the review petitions were also dismissed by the Hon ble High Court. He submits that the Adjudicating authority immediately after sanctioning of the refund claim, issued a show-cause notice demanding recovery of refund. The Hon ble High Court finally dismissed the department s writ appeals against the High Court Single Bench order and no SLP has been filed. He submits that the Hon ble High Court Single Bench order attained finality. 12. In the impugned order, the Commissioner (Appeals) denied the exemption benefit of Notification No.133/85 and held that amended Notification No.306/86 is applicable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was incorporated with effect tfrom 20.09.1991, doctrine of unjust enrichment clause will apply retrospectively. In this regard, he relied on the following judgments of the Hon ble Supreme Court: (i) Union of India Vs Jain Spinners Ltd. reported in 1992 (61) E.L.T.321 (S.C.). (ii) Union of India Vs Raj Industries reported in 2000 (120) E.L.T.50 (S.C.) (iii) Union of India Vs Ingersoll Rand (India) Ltd. reported in 2000 (120) E.L.T.291 (S.C.). He further submits that the Honble Supreme Court dismissed the review petition filed by Jain Spinners Ltd. Vs Union of India reported in 1993 (64) E.L.T.A.195 (S.C.). He submits that Honble Supreme Court clearly held that a Central Excise and Customs law amendment came into operation from 20.09.1991 had retrospective effect and, therefore, is applicable to the refund order passed before the date of amendment. He further submits that in the present case, the appellant s refund application was pending from the date of finalization, therefore by virtue of Hon ble Supreme Court s above decision the unjust enrichment clause is applicable in the present case. 15. On the appellants appeal, the learned Authorized Representative su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is not correct. Learned Authorised Representative s arguments to the assessees claim is not right as the Hon ble High Court has clearly quashed Notification No.306/86. Whereas in the impugned order, the Commissioner (Appeals) relied on Notification No.306/86 and allowed the Revenues appeal, which is in clear violation of the High Court s order. Since Notification No.306/86 was struck down, the Commissioner (Appeals) has no power to reopen and again deny the benefit. In this regard, he relied on the following judgments, in the case of - (i) Easwar Dutta Vs Land Acquisition collector Another reported in (2005) 7 CCC 190 [Paras 14,18,29 30] He also further submits that Hon ble Supreme Court in the case of Indian Charge Chrome [Para no.18], clearly held that they have not expressed any opinion as to whether contract is already registered in pursuance to the contract as this was not the issue before the Honble Supreme Court. Therefore, they have not expressed any opinion and left it to be agitated upon as and when the occasion arise for the purpose. He submits that profit in the present case, the contract was already registered on 07.10.1985 and the goods were imported pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal of Revenue's writ appeals on 17.7.2000, the appellant-assessee approached the department for consequential refund in terms of Hon'ble High Court's order dt. 2.3.95, and when the refund was not granted, the appellants again approached the Hon'ble High Court by way of another writ petition No.5299/98 seeking writ of mandamus for implementing the High Court's order dated 2.3.95and the Hon'ble High Court, Madras in their order dt. 11.11.1998 disposed the said writ petition with a direction to the Revenue to implement the directions of the learned Single Judge order dt. 2.3.1995. 22. Instead of implementing the Hon ble High Court directions, the Revenue preferred another W.A. No.1696/98 against the High Court order dt. 11.11.1998. The Hon'ble High Court dismissed the said Revenue W.A.No.1686/98 by their order dt. 13.10.2008 with a direction to dispose of the appellant's refund application within a period of two weeks from the date of receipt of copy of the order. The relevant paragraph of the Honble High Court Division Bench order dt. 13.10.2008 is reproduced as under :- 6. As the order passed in W.P.Nos.4566 and 4567 of 1987 has become fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led against the dismissal order dt. 8.10.2009 of review application. 24. From the above sequence of events and series of 7 Hon ble High Court's orders discussed above, we find that Hon'ble Single Judge order dt. 2.3.1995 has attained finality. It is also relevant to state that once again the department choose not to file any appeal before the Apex Court against the Hon ble High Court s Order dated 13.10.2008. 25. Thus, Revenue having failed in both writ appeal as well as in review application vide the High Court's orders dt. 17.7.2000 and 8.10.2009 respectively, the Hon'ble High Court's order dt. 2.3.1995 has attained finality and binding on the department as far as this appellant is concerned. Therefore, we do not see any error in the adjudicating authority s order who diligently complied the Honble High Court s Order. The adjudicating authority while sanctioning the refund had clearly brought out in his order dt. 8.4.2011, all aspects including the Hon'ble Supreme Court judgment by relied by Revenue in the case of Union of India Vs Indian Charge Chrome (supra). 26. Having failed to seek any appeal remedy against both the Hon'ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insurance Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year 1-4-1975 to 31-3-1976 to Class III and Class IV employees . 27. Further, the Hon'ble Supreme Court in the case of RBF RIG Corporation Vs CC (Imports), Mumbai - 2011 (264) ELT 486 (SC) which was relied by the adjudicating authority in the adjudication order has held as under :- 19. We hasten to add, if for any reason, the subordinate authority is of the view that the directions issued by the Court is contrary to statutory provision or well established principles of law, it can approach the same Court with necessary application/petition for clarification or modification or approach the superior forum for appropriate reliefs. In the present case, as we have already noticed, the respondents have not questioned the order passed by the High Court, which order has reached finality. In such circumstances, we cannot permit the adjudicating authority to circumvent the order passed by the High Court. 20. Therefore, in our view, the refund claim of appellant has been erroneously rejected by the Deputy Commissioner of Customs vide its order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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