2002 (10) TMI 541 - AT - Central Excise

Summary

Issues involved:
Whether the refund of Anti-dumping Duty is available to M/s. OCL India Ltd. in terms of Notification No. 59/96, dated 21-8-96 and Notification No. 98/96, dated 21-12-96.

Analysis:

Issue 1: Refund of Anti-dumping Duty Eligibility
The Appellant imported Dead Burnt Magnesite (DBM) from China with varying MgO content. The Designated Authority recommended provisional anti-dumping duty on DBM imports. After a legal challenge, the duty was amended to apply to DBM with MgO content ranging from 85% to 92%. The final anti-dumping duty was fixed for DBM within this range. The Appellants filed a refund application for the excess duty paid on DBM with MgO content above 92%. The Deputy Commissioner partially allowed the refund but rejected a portion due to lack of evidence on the quality of goods. The Commissioner (Appeals) rejected the appeal, stating that the notifications were effective from their publication dates. The Appellants provided a Quality Inspection Certificate certifying MgO content as 97.09%. The Appellant argued that Rule 21(2) allows for a refund based on the final duty after investigation, making the issue of prospectivity or retrospectivity of the notifications irrelevant.

Issue 2: Legal Interpretation and Refund Decision
The Adjudication Order by the Deputy Commissioner stated that as per Notification 98/96, no anti-dumping duty was leviable on the imported DBM, making the deposited duty refundable. This finding was not challenged by the Department before the Commissioner (Appeals). The Deputy Commissioner allowed the refund for certain Bill of Entry (B/E) numbers but rejected one due to lack of evidence on MgO content. The Commissioner (Appeals) rejected the appeal on a new ground not raised by the Department under Section 129D of the Customs Act. The Tribunal found that the rejection was based on a new ground and remanded the matter to the Commissioner (Appeals) to decide based on evidence of MgO content for the specific B/E number.

In conclusion, the Tribunal allowed the appeal by remand, emphasizing the importance of proper evidence regarding the quality of goods for determining the eligibility of a refund of anti-dumping duty. The judgment highlighted the significance of following the legal procedures and evidence requirements in such cases to ensure fair and accurate decisions on duty refunds.