TMI Blog2018 (6) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in the nature of compensation. The claim of the appellant for interest on delayed refund cannot sustain - appeal dismissed - decided against appellant. - Appeal No. C/40815 & 40816/2016 - Final Order Nos. 41670-41671 / 2018 - Dated:- 31-5-2018 - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon ble Shri Madhu Mohan Damodhar, Member (Technical) Shri Hari Radhakrishnan, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent ORDER Per Bench 1. Brief facts are that the appellant M/s. GMMCO Ltd. is engaged in the business of sales and services of heavy earthmoving equipments, power transmission equipments, generator sets which are necessary for industrial and infrastructure projects.As the appellant was importing these spare parts from their related supplier, the transactions of the appellant were referred to the Special Valuation Branch, Chennai vide circular No. 53/1986 dated 8.4.1986. Pending finalization of the investigation by the SVB, all the bills of entry of the appellant were provisionally assessed after collecting 20% Extra Duty Deposit (EDD). On completion of investigation, the Assistant Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they preferred an appeal to the Tribunal against the Order-in-Appeal dated 11.11.2002. 1.7 The Tribunal vide Final Order dated 21.9.2004 directed the original authority to finalize the provisional assessment and gave liberty to the appellant to file a refund claim thereafter, in terms of the limitation prescribed under Section 27 of the Customs Act, 1962. 1.8 The department preferred an appeal against such order before the Hon ble High Court of Madras. The Hon ble High Court vide order dated 6.11.2008 in CMA Nos. 3607 and 3608 of 2005 dismissed the appeal filed by the department holding that the doctrine of unjust enrichment will not be applicable to provisional assessments even after finalization. Against the High Court order dated 6.11.2008, the Sea Commissionerates filed a restoration petition before the Hon ble High Court with a prayer to set aside the High Court order dated 6.11.2008 and to restore their appeals. The Hon ble High Court refused to review its earlier order and dismissed the restoration petition filed by the Sea Commissionerate. 1.9 As the assessments were still not finalized, a request was made by the appellant to the Commissioner of Customs vide letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t,1962. It is clear from the facts of the case that the delay is wholly attributable to the department and that the appellant has been deprived of the legitimate amount only due to the delay caused on the side of the department in finalizing the assessment. The department had preferred petitions for restoration to High Court and appeal to the Hon ble Supreme Court only to delay the matter. The provision contained in section 18(4) to pay interest if not refunded within three months from the date of assessment of duty finally has to be read as the date on which the department ought to have finalized the provisional assessment , when there is inordinate delay on the part of the department to finalise the assessment. 2.2 Even though no particular time limit is prescribed in the statute for finalizing the assessment, the Board vide its Circular No. 382/15/98-CX dated 19.3.1998 has given instructions that all provisional assessment must be finalized within a period of six months from the date of assessment of the order of the provisional assessment. In case it is not finalized within such six months, extension of another six months can be granted by the Commissioner. The department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indings in the impugned order. He adverted to sub-section (4) of Section 18 of the Customs Act, 1962 and submitted that the department is liable to pay interest only when the refund has not been granted within three months from the date of finalization of the assessment. In the present case, the assessment has been finalized on 10.10.2015 and the refund claims were sanctioned on 12.10.2015 taking the refund claims filed on 11.12.2001 as a claim in terms of Explanation (ii) to Section 27(1) of Customs Act, 1962. Part of the refund claim was allowed vide 9.10.2015 and 12.10.2015. The ld. AR submitted that the issue was under litigation from 1991 onwards and in 1994 the order passed by the Tribunal was in favour of the department. Only when the matter reached the Hon ble Supreme Court and the same was remanded to the Tribunal for fresh consideration vide Final Order dated 25.8.2000, the Tribunal held the issue in favour of the assessee and directed the department to finalize the assessment. The department then filed Civil Appeal against such Final Order of Tribunal before the Apex Court and later petitions for restoration were preferred before the High Court also. That there was no st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal vide its Final Order No.677 to 688/2000 dated 25.8.2000 directing the department to finalize the assessment within the time frame of four months, the department had to comply with the same. Taking the said date of four months as the time by which department ought to have finalized the assessment, the appellant has to be granted interest upon the sanctioned refund amount. For better appreciation, the direction of the Tribunal in the said Final Order reads as under:- 11. In view of what has been stated above, we dismiss the appeal filed by the Revenue and allow the appeal of the importer, namely GMMCO. We direct the authorities to finalize the assessment on the basis of the transaction value shown in the invoices as the value of the goods worth within the purview of Section 14 of the Customs Act. Since the matter is a long pending one, we direct the adjudicating authority to pass final order as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this order. M/s. GMMCO will be entitled to consequential relief . The department filed appeal before Supreme Court against this order which was dismissed. Later, the Deputy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000. 7. Though this argument of the ld. counsel may appear to be attractive on the first blush, it is to be stated that it is settled principle in law, that the Court cannot read anything into a statutory provision which is plain and unambiguous. The language used in the statute speaks of the legislative intent. The Court has to look into what has been said. In para 19 of Union of India Vs. Dharmendra Textiles Ltd. 2003 (231) ELT 3 (SC), the Hon ble Apex Court observed as follows:- 19. It is then true that : When the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt. But , on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom . (See Fenton v. Hampton (1858) 11 MOO PC 347). 8. Moreover, the department had filed a statutory appeal before the Hon ble Supreme Court against the said Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in a similar issue in the case of Hindustan Photo Films Mgf. Co. Ltd. cited supra, considered the decisions of the Hon ble Apex Court in Sandvik Asia Ltd. (supra) as well as Gujarat Fluoro Chemicals (supra) and held that Tribunal cannot grant compensation not provided in the statute. The relevant portion of the order passed by Tribunal is reproduced as under:- 6. The question now in the present appeal is the eligibility of the appellant for payment of interest on delayed payment of interest on the refund sanctioned to them. The appellant claimed such payment on the ground of long delay even in disbursing the interest. Though the ld. consultant insisted that it can be considered as a compensation for the financial loss and not strictly as interest on interest, we note that the appellant did not quote any statutory provision under the Customs Act, 1962 to support their claim. Any claim of amount from the Government can be disbursed only based on a statutory provision. The Tribunal cannot pass an order for general compensation in the facts of the present case. We note that in Gujarat Fluoro Chemicals (supra), the Hon ble Supreme Court, examining similar provisions under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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