TMI Blog2017 (7) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... aid amount to the respondent company. However, pursuant to the refund of the above said amount to the respondent company, the appellant department has issued a show cause cum demand notice dated 04.08.2011 to the respondent company under Section 28 of the Customs Act, calling upon the respondent company to show cause as to why, the erroneously refunded amount of ₹ 3,83,83,821/- should not be recovered from the respondent with interest. The appellant department cannot take two parallel proceedings for the same issue i.e. Challenging the erroneously refunded duty amount by the appellant department to the respondent company - the Tribunal has rightly allowed the appeal filed by the respondent company and had dismissed the appeal filed by the appellant department and the same does not warrant any interference by this Court - appeal dismissed - decided against Revenue. - Civil Miscellaneous Appeal Nos. 1204 & 1205 of 2016, C.M.P Nos. 9103 to 9105 of 2016 - - - Dated:- 18-4-2017 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. V. Sundareswaran, SPC For the Respondent : Mr. Vijayaraghavan, Senior Counsel JUDGMENT ( Judgment of the Court was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.S37/186/86 Gr.E. By order dated 02.03.1995, allowing both the writ petitions, this Court quashed the latter part of the Notification No.306/86 denying the benefits of Notification No.133/85 to captive power plants. Based on the said order, the assessee company sent a letter dated 14.09.1995 to the Assistant Commissioner, Gr.E., seeking refund of a sum of ₹ 1,50,99,362.95. Against the aforesaid order, the department preferred appeals in W.A. No. 358 359 of 1997. Since his representation dated 14.09.1995 was not replied, the assessee company filed a writ petition in W.P.No.5299 of 1998 seeking to implement the orders of this Court and grant refund of ₹ 1,50,99,362.95 being the duty collected in excess of 25%, on the goods imported by the assessee company under Project Imports Registration No.S37/186/ 86 Gr.E, in terms of the refund application filed by the company, immediately, along with interest @ 16% p.a., from 02.06.1995 till the date of payment. This is a second writ petition filed by the assessee company. By an order dated 11.11.1998, this Court disposed of W.P. No.5299 of 1998 holding that since no stay was granted by the Division Bench of this Court, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 429/2011 dated 22.07.2011, the department preferred an appeal before the Commissioner (Appeals) on the ground of unjust enrichment and more particularly in the light of the decision of the Hon'ble Supreme Court in 2005 (181) ELT 328 (Shahakari Khand Udyog Mandal Ltd. vs. Commissioner). In Union of India vs. Indian Charge Chrome reported in 1999 (112) ELT 753 (SC) the Hon'ble Supreme Court had upheld that vires of Notification No.30619/86 dated 01.05.1986. Further, a show cause-cum-demand notice No.F. No.S24/MAN/791/11-Ref dated 04.08.2011, calling upon the assessee company to show cause as to why the erroneously refunded amount of ₹ 3,83,83,821/- should not be recovered from them, along with interest. Pursuant to the said show cause notice, the assessee company refunded a sum of ₹ 4,10,90,669/- on 02.09.2011, under protest. However, the assessee company filed W.P. No.23149 of 2011 before this Court and obtained an order of stay of the show cause proceedings, on 12.10.2011. The appeal of the department was allowed by the Commissioner (Appeals) in IOA C.Cus.No.5 of 2013 on 08.01.2013, holding that the assessee company is not eligible for the benefit under Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Ori.), but the same has been subsequently reversed by the Hon'ble Apex Court Union of India vs. Indian Charge Chrome reported in 1999 (112) ELT 753 (SC). The Tribunal has not appreciated the case of the department that once the Apex Court has upheld the vires of the explanation in Notification No.306/86 dated 01.05.1986 to Notification No.133/85 dated 19.04.1985, it is the law under Article 141 of the Constitution of India, which binds all persons including those who had not challenged the notification. Further, the declaration of law by the Hon'ble Supreme Court in the above said case is binding on all Courts, authorities and persons, notwithstanding the fact that no appeal was filed against the Writ Appeal Nos. 358 and 359 of 1997. The impugned order issued by the appellant department, with regard to unjust enrichment is valid in law, in the light of the decision of the Hon'ble Apex Court in the case of Union of India vs. Indian Charge Chrome reported in 1999 (112) ELT 753 (SC). Eventhough the appellant department has complied with the order passed by this Court in W.P. Nos.4566 and 4567 of 1987, confirmed in W.A. Nos. 358 and 359 of 1997, as per the provisions unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court and if there is any legal impediment to implement the order, the appellant department should have filed an appeal on the said order. Without exhausting the available remedy as against the refund of duty amount, the act of the appellant department by issuing a show cause notice and directing the respondent company to remit back the amount, would amount to contempt of court. Learned counsel further submitted that excess duty was paid to clear the goods and the refund amount was remitted back to the appellant department, only under protest. The appeal filed by the respondent company before the Commissioner of Customs (Appeals) was dismissed on 08.01.2013, on account of te order passed by this Court. 8. Aggrieved by the said order, the respondent company and the appellant department filed an appeal before the Tribunal. The appeal filed by the appellant department was dismissed by the Tribunal holding that the refund of the duty have been made, pursuant to the orders passed by this High Court in the above said writ petitions and writ appeals. Therefore, the order of the Tribunal is perfectly valid in law and does not warrant any interference with the order passed by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were dismissed by this Court and the same has become final. No Special Leave Petition has been preferred by the appellant department. While the show cause proceedings have been stayed in M.P. No.2 of 2011, the main W.P. No.23149 of 2011 filed by the respondent company is pending before this Court. The same is not disputed. Pursuant to the orders passed by this Court in the aforesaid writ petitions, writ appeals and the review application, the Deputy Commissioner of Customs (Refunds) passed the order in Original No.15603/2011 dated 08.04.2011, which reads as follows :- I order for the sanction of ₹ 1,50,99,363/- against excess duty paid and ₹ 2,32,84,458/- as interest which in total works out to ₹ 3,83,83,821/- (Rupees Three Crores Eighty Three Lakhs Eighty Three Thousand Eight Hundred and Twenty One Only) as refund under Section 27 of the Customs Act, 1962 to the claimant M/s. Chemplast Sanmar Ltd., which was paid in respect of the B/E's as mentioned supra . The Commissioner of Appeals reversed the order of the Original Authority and passed a detailed order by relying upon the decision of the Hon'ble Supreme Court in the case of Union of India vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be curtailed in public interest. Individual interest must yield in favour of societal interest. In the case at hand we find the respondent in its writ petition having laid challenge to the validity of the amendment notification on the ground of invidious discrimination but there is no plea raised that formation of opinion as to public interest was based on no material or was vitiated by malafides. It has been held that the Government can issue clarifications, notifications without discriminating any class of goods or person, it is established beyond doubt that the respondent are not eligible for the benefit under notification No.133/85 read with notification 306/86 and subsequent refund, not withstanding the fact that the same was ordered by the Hon'ble High Court of Madras. 13. The Appellate Tribunal by its order dated 02.06.2015 in Final Order Nos. 41589 and 41590 of 2015 has held as follows :- 27. Revenue having lost their appeal remedy against the Hon'ble High Court orders dated 17.07.2000 and 08.10.2009 cannot take shelter by reviewing the order of the adjudicating authority by citing the case law of Union of India vs. Indian Charge Chrome (supra). It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141 of the Constitution of India. 15. In the case of M/s. Shenoy Company vs. Commercial Tax Officer, reported in 1985 (21) ELT 14 (SC), the Hon'ble Supreme Court has held that under Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India. In paragraphs 16 17 it is observed as follows :- 16. In our opinion , both these decisions lay down identical (1) [1969] I S.C.R. 103. principles and there is nothing to distinguish between the two. In the earlier case , this Court , on its facts , overruled the preliminary objection that absence of appeals against the three petitioners left out , would not render the appeal before this Court incompetent , holding thereby that the effect of the decision in that appeal would be binding on the appellant therein. In the latter case , this Court in unmistakable terms laid down that the law laid down in the earlier case , namely , Triloknath's case , applied even to those who were not parties to the case. These two decision were given by two Constitution Benches of this Court. We find that Joginder Singh's case was not noted by the Bench that dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and could have requested the Court to hear them also. They cannot be heard to say that the decision was taken by this Court behind their back or profess a ignorance of the fact that an appeal had been filed by the State against the common Judgment. We would like to observe that , in the fitness of things , it would be desirable that the State Government also took out publication in such cases to alert parties bound by the Judgment, of the fact that an appeal had been preferred before this Court by them. We do not find fault with the State for having filed only one appeal. It is , of course , an economizing procedure. In paragraphs 18, 19 20, it is discussed regarding the nature of Mandamus, which is extracted below :- 18. .... To contend that this conclusion applies only to the party before this Court is to destroy the efficacy and integrity of the Judgment and to make the mandate of Article 141 illusory. By setting aside the common Judgment of the High Court , the mandamus issued by the High Court is rendered ineffective not only in one case but in all cases. 19. A writ or an order in the nature of mandamus has always been understood to mean a command issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandamus issued by the High Court becomes ineffective and unenforceable when the basis on which it was issued falls , by the declaration by the Supreme Court , of the validity of 1979 Act. 16. With regard to the present case on hand, challenging the orders passed in the W.P. Nos. 4566 4567 of 1987 and 5299 of 1998, Writ Appeals have been filed by the appellant department, which were dismissed. Challenging W.A. No.1686 of 1998, a Review was filed and the same was also dismissed by this Court. So, the appellant department has refunded a sum of ₹ 3,83,83,821/- to the respondent company. Therefore, the order of this Court has become final and no Special Leave Petition has been preferred by the appellant department. 17. In view of the above, the original authority has held that the respondent company was entitled to the refund of ₹ 1,50,99,363/- together with interest of ₹ 2,32,84,458/- (totally amounting to ₹ 3,83,83,821/-). So, it is clear that the appellant department had accepted and complied with the order passed by this Court in the above Writ Petitions and had refunded the above said amount to the respondent company. However, pursuant to the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the petitioner, they could very well consider all the facts and circumstances of the case and dispose of the representation on merits and in accordance with law. Instead of complying with the direction concurrently issued by the learned Single Judge and also by the Division bench in the writ appeal, the Administration is gaining time by filing this type of frivolous and vexatious litigations, besides seeks us to exercise their duties. Hence, we see no reason to entertain the review application and accordingly, the same is dismissed. However, there will be no order as to costs. Consequent to this Court order, no SLP was filed before the Hon'ble Supreme Court, by the appellant department. 21. In the case of Ishwar Dutt vs. Land Acquisition Collector anr. reported in (2005) 7 SCC 190, in paragraphs 29 and 30 the Hon'ble Supreme Court has observed as follows :- 29. Furthermore, a writ of mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of validating statute is brought into force. 30. In Madan Mohan Pathak and Anr v. Union of India and Ors., the Constitution Bench observed: (SCC p.67, para 9) Here, the judgment g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Commissioner of Customs has rejected the refund claim of appellant on the ground of unjust enrichment and failure to challenge the assessment of the Bills of Entry at the appellate stage, without even considering the Essentiality Certificates in the light of specific and binding directions of the High Court. 21. In view of the above, we allow this appeal and direct the Customs authorities to consider the appellant's claim of refund of customs duty paid under protest in accordance with the directions issued by Delhi High Court vide its order dated 11.03.2003 as expeditiously as possible. In the facts and circumstances of the case, we direct the parties to bear their own costs. 22. As per the decisions of the Hon'ble Supreme Court cited supra, the appellant department was unsuccessful in their appeal remedy against the orders passed by this Court on 17.07.2000 in Writ Appeal Nos. 358 and 359 of 1997 and in Rev. A. No.128 of 2009 dated 08.10.2009 and could not take shelter by reviewing the earlier order of the adjudicating authority, in light of the decision rendered in the case of Union of India Vs. Indian Charge Chrome, eventhough the appellant department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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