2018 (10) TMI 569 - AT - Customs

Refund of anti-dumping duty paid - test of unjust-enrichment - Held that - There is an adumbration of the test of unjust enrichment; to counter this, the balance sheets for the relevant years were also submitted - in the relevant years, appropriate provisions have been made indicating that the incidence of duty had been borne by the importers. With the invalidation of imposition of anti-dumping duty, the duty collected in consequence should not, in these circumstances, have been credited to the Consumer Welfare Fund but released in accordance with the provisions of section 27 of the Customs Act, 1962 - appeal allowed - decided in favor of assessee.

Summary

Issues:
1. Appeal by Revenue against order-in-appeal granting relief to the importer regarding anti-dumping duty on imports of 'polypropylene cosmoplene terpolymer'.
2. Appeal by importer against the refund of duty liability credited to the Consumer Welfare Fund.
3. Interpretation of the notification imposing anti-dumping duty on 'copolymers of polypropylene'.

Analysis:
1. The appeal by Revenue challenged the order-in-appeal granting relief to the importer, contending that the notification imposing anti-dumping duty covered 'copolymers of polypropylene'. The importer argued that the duty was limited to 'homopolymers and copolymers of propylene and ethylene', excluding 'terpolymers'. The appellate authority accepted the importer's argument, leading to the Revenue's appeal. The importer also sought a refund of the duty, which was credited to the Consumer Welfare Fund. The appellate tribunal, after considering the arguments, held that the anti-dumping duty was not applicable to the importer's imports, thereby allowing the importer's appeal.

2. The importer's appeal against the refund of duty liability credited to the Consumer Welfare Fund was based on the argument that the duty had already been borne by them. The tribunal examined the balance sheets submitted for the relevant years, which indicated that the duty incidence was on the importers. With the invalidation of the anti-dumping duty imposition, the tribunal concluded that the duty collected should not have been credited to the Consumer Welfare Fund but should be released to the importer in accordance with the Customs Act, 1962. Consequently, the tribunal set aside the order and allowed the importer's appeal for the refund.

3. The interpretation of the notification imposing anti-dumping duty on 'copolymers of polypropylene' was a crucial aspect of the case. The Revenue argued that the duty extended to all polymers where no single monomer unit contributed 95% or more by weight. The importer contended that the duty was limited to 'homopolymers and copolymers of the particular product', excluding 'terpolymers'. The tribunal analyzed the final findings of the anti-dumping duty authority and subsequent notifications clarifying the scope of duty imposition. Based on these clarifications and the proceedings before the authority, the tribunal agreed with the first appellate authority that the anti-dumping duty was not applicable to the importer's imports of 'polypropylene cosmoplene terpolymer'.

In conclusion, the tribunal ruled in favor of the importer, holding that the anti-dumping duty did not apply to the imports in question and directing the refund of the duty liability credited to the Consumer Welfare Fund.