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TMI Blog2023 (11) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 (Sl. No.19) (as amended). Notification provided that Anti Dumping Duty shall be levied for a period of 5 years (unless revoked superseded or amended earlier) from the date of imposition of provisional Anti Dumping Duty i.e form 30.07.2009, and shall be payable in Indian currency. Further, it was amended vide Notification No. 38/2014-Cus (ADD) dated 13.08.2014 to the effect that the said levy imposed on the said goods shall remain in force up to and inclusive on 29.07.2015, unless revoked earlier. No further extension of validity was granted. Government of India reviewed Anti Dumping Duty on the subject goods and vide Notification No. 07/2016-Cus (Add), dated 08.03.2016 (Sl. 3 ) provided for Anti Dumping Duty at nil rate for the subject goods of CTH 3902-10000 and 3902-30000 produced and exported by "Exxon Mobil Chemical Asia Pacific", thus, from 29.07.2015, there was no ADD. Thus after 08.03.2016, it was completely settled that there was no Anti Dumping Duty for subject goods of CTH 39021000 and 390023000 produced in Singapore and exported by "Exxon Mobil Chemical Asia Pacific" from Singapore. In the mean while appellant being regular importer of the said goods had filed total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CU(DB), in the meanwhile the principle Commissioner in the matter of SCN dated 13.06.2017 passed order-in-original No. AHM-CUSTM-000-COM-0015-19-20 dated 13.12.2019, whereby a recovery of the erroneous refund was confirmed. Being aggrieved with the said order-in-original, the appellant preferred Appeal No. C/10082/2021-DB. This appeal is consequential to the order-in-appeal dated 12.02.2021. 3. Shri P P Jadeja, learned Consultant appearing on behalf of the appellant at the out set submits that the appellant's refund claim was rejected on the sole ground that the appellant have not challenged the assessment order of bill of entry. He submits that firstly at the time of assessment of bill of entry and clearance of goods no Anti Dumping Duty was leviable. It is on the behest of the department, the appellant have deposited the Anti Dumping Duty as per abundant precaution. Therefore, the payment of Anti Dumping Duty is not a part of final assessment of bill of entry. He invites our attention to the copy of bill of entry, wherein he has shown that the Anti Dumping Duty was neither part of the assessment of bill of entry nor the deposit was made in pursuance to the assessment of bill of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nowgong & Ors Etc 1989 (43) ELT 205 (SC)- Mahabir Kishore Vs. State of Madhya Pradesh 2001 (128) ELT 3 (SC)- U P Polluiton Control Board Vs. Kanoria Industrial Ltd 2001 (130) ELT 3 (SC)- Somaiya Organics Vs. State of Uttar Pradesh 2018 (36) ELT 577 (SC)- CC (Import), Mumbai Vs. Dilip Kumar & Company Perfect Importers And Distributors P Ltd Vs. UOI- 2023 (383) ELT 499 (Guj.) 2019 (368) ELT 216 (SC)-ICD Ltd Vs. CCE 2023 (384) ELT 227 (SC)-Royal Impex 4. Shri A R Kanani, learned Superintendent (Authorized Representative) appearing on behalf of revenue reiterates the findings of the impugned order. He placed reliance on the following judgments: Circular No. 24/2004-Cus dated 18.03.2004 2019 (368) ELT 216 (SC)-ITC Ltd Vs. CCE, Kolkata-IV Final Order No. 40498/2023 dated 28.06.2023-CC, Tuticorin Vs. Tamil Nadu Generation & Distribution Corporation Ltd 5. We have carefully considered the submissions made by both the sides and perused the records. We find that the sole ground for rejection on the refund claim of the appellant is that the appellant have not challenged the assessment order of bills of entry, therefore, the appellant is not entitled for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as part of final assessment order of the bills of entry. As regard the judgment relied upon by the revenue on going through the same, we observed that in both the decision one of ITC LTd of Apex Court and other is Tribunal decision in Tamil Nadu Generation & Distribution Corporation Ltd, it is clear that in both the cases, the issue was decided keeping in mind that any duty which is part and partial of the duty in regard to which the final assessment order was passed such final order needs to be challenged. However, in the fact of the present case as discussed in detail above with regard to the payment of Anti Dumping Duty, there is no final assessment order. Therefore, the judgments cited by the leaned AR have no application in the fact of the present case. In the present case it is undisputed fact by the revenue also that the ADD paid by the appellant was not at all leviable at the relevant time. Therefore, duty which was not leviable and there is no is on that there can not be assessment/ reassessment of such not leviable duty. This fact also strengthen the case of the appellant. We also concur with the following views expressed by the sanctioning authority while sanction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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