TMI Blog2023 (1) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... nti Dumping Duty imposed with respect to imports made during the period between the expiry of the provisional Anti Dumping Duty and the imposition of the final Anti Dumping Duty is legal and valid or not and while deciding such a question of law. As the respondent authority has not carried out the directions issued by the appellate authority and has tried to justify the order which is set aside by filing the affidavit in reply on merits in this proceeding, it would be a futile exercise to direct the respondent n.2 for passing the order as per the directions of the appellate authority - the assessment orders which are in form of bill of entries filed by the petitioners are not required to be modified or reassessed as the same are filed without inclusion of levy of anti dumping duty. The petitioners were compelled to pay such duty only after filling bill of entries so as to release the goods. The respondent authorities are directed to refund amount of Rs.23,62,796.00 with interest at the rate of 6% per annum from the date of levy till final payment within eight weeks from the date of receipt of copy of this order - Petition allowed. - R/Special Civil Application No. 22502 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Provisional Anti Dumping Duty Notification and the regular final Anti Dumping Duty Notification in the intervening period, no Anti Dumping Duty is payable. 3.6) The respondent authorities by letter dated 17.12.2015 informed the petitioners that refund cannot be allowed as the Anti Dumping Duty was levied as per the provisions of Notification No.21/2015 dated 22.5.2015 with effect from 11.4.2014 and therefore, when the goods were imported by the petitioners, the Anti Dumping Duty was leviable as per the Notification No.21/2015. 3.7) The petitioners thereafter reiterated the request to refund the Anti Dumping Duty paid by the petitioners vide letter dated 25.12.2015 again relying upon the decision of the Apex Court in case of G.M. Exports (supra). 3.8) The petitioners received the show cause notice dated 10.2.2016 from the respondents calling upon to show cause as to why refund claim of Rs.23,62,796.00 should not be rejected under section 27 of the Customs Act, 1962 read with Notification No.21/2015 dated 22.5.2015. 3.9) The petitioners filed the written submissions dated 15.7.2016 reiterating that the petitioners are entitled to refund as per the decision of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners is covered in favour of the petitioners. 3.15) The petitioners therefore, sent a reminder letter dated 30.07.2019 to respondent no.2 to take a decision for granting refund as per the decision of the Apex Court in case of G.M. Exports (supra). As the respondent no.2 has not taken any action after the remand of the matter by the appellate authority vide order dated 22.01.2019, the petitioners have preferred this petition with a prayer to direct respondent no.2 to refund the amount claimed by the petitioners. 4.Learned advocate Mr. Hasit Dave for the petitioners submitted that the appellate authority in order dated 22.01.2019 has given directions to the respondent no.2 adjudicating authority to grant an opportunity of hearing to the petitioners and examine the available facts, documents, submissions and all relevant case laws and then pass proper legal speaking order afresh adhering to the legal provisions. It was submitted that inspite of such clear directions and observations made by the appellate authority, respondent no.2 has not passed any order since then. 4.1) It was submitted that the petitioners have time and again requested the respondent authorities to pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his submissions, learned advocate Mr. Dave relied upon the following decisions : 1) In case of Salonah Tea Company Ltd. Etc. v. Superintended of Taxes, Nowgong Ors. Etc. reported in 1988(33) ELT 249 (SC). 2) In case of HMM Ltd. v. Administrator, Bangalore City Corporation reported in 1997 (91) ELT 27 (SC). 3) In case of New Kamal v. Union of India reported in 2020(372) ELT 571 (Guj). 4) In case of S.R. Polyvinyl Ltd. v. Commissioner of Cus. ICD, TKD, New Delhi reported in 2020(371) ELT 283. 5) In case of Sandvik Asia Ltd v. Commissioner of Income tax-I, Pune reported in 2006 (196) ELT 257 (SC). 5.On the other hand, learned advocate Mr. Nikunt Raval for the respondents submitted that the petitioners are not entitled to any relief contrary to the policy decision of the Central Government to pay the required duties as per the norms prescribed from time to time. 5.1) It was submitted that the appellate authority while remanding the case back to the original adjudicating authority for de novo proceedings, has held that the applicability of the ratio of the Apex Court in case of M/s. Priya Blue Industries Ltd. (supra) is required to be re-examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the mandatory language contained in Rule 13 second proviso. Here again a simple example would suffice. Say the provisional duty is levied at the rate of Rs. 50/- PMT and comes to an end after 6 months. 6 months later, a final duty is imposed again at the same rate of Rs. 50/- PMT with effect from the date of levy of the provisional duty. If learned counsel for the revenue were right, Rs. 50/- PMT could be recovered under Rule 20(2)(a) for the interregnum period as well which would, in effect, destroy the scheme of Rule 13 second proviso by extending the period of the provisional duty notification beyond a period of 6 months, which clearly cannot be done. We find therefore that on all these counts, the arguments of revenue cannot be countenanced. 7.After considering the aforesaid decision in case of G.M. Exports (supra) in order dated 22.01.2019, Commissioner of Customs (Appeals) held as under : 05. I have carefully gone through the impugned order, the appeal submissions, and other records of the case. The impugned order has been issued in pursuance of Order-in-appeal No. AHD-CUSTM- 000-APP-007-17-18 dated 01.05.2017 remanding the case back to the original adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e light of the said case laws. Further to this, specific findings are required to be given with regards to the applicability of the Apex Court decision in the matter of Commissioner of Customs vs G.M. Exports-2015 (324) E.L.T 209 (SC) to the facts of the impugned refund claim. In view of these facts, the impugned order is liable to be remanded to the adjudicating authority for de novo proceedings. In this regard, I rely upon the case of Prem Steels P Ltd- 2012-TIOL-1317-CESTAT-DEL and the case of Hawkins Cookers Ltd. - 2012 (284) ELT 677(Tri-Del), which have also relied upon case of Medico Labs- 2004(173) ELT 117 (Guj.), wherein it has been held that Commissioner (Appeals) continue to have power of remand even after the amendment of Section 35(A) of the Central Excise Act, 1944 by Finance Act, 2001 w.e.f 11.5.2001. 7. Accordingly, I remit the refund claim back to the adjudicating authority, who shall examine available facts, documents, submissions and all relevant case laws then pass proper legal speaking order afresh after following principles of natural justice and adhering to the legal provisions. While passing this order, no opinion/ views have been expressed on the merits o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Supreme Court. The issue before the Apex Court was pertaining to refund under section 98(2) of City of Bangalore Municipal Corporation Act, 1949 read with Rule 57A of the Central Excise Rules, 1944 with regard to levy of octroi in respect of goods which are not used, consumed or sold within the municipal limits so as to become collection without any authority of law. It was held that the respondent authority had no authority to retain the amount which is refundable as there was no dispute on plea of unjust enrichment of the petitioner. 13. We are therefore of the opinion that as the respondent authority has not carried out the directions issued by the appellate authority and has tried to justify the order which is set aside by filing the affidavit in reply on merits in this proceeding, it would be a futile exercise to direct the respondent n.2 for passing the order as per the directions of the appellate authority. 14. The respondent no.2 is therefore required to be directed to issue refund to the petitioners in view of the decision of the Apex Court in case of G.M. Exports(supra). In the facts of the case the ratio of the decision of Priya Blues(supra) would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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