2020 (9) TMI 57 - HC - Customs

Release of consignment - refund of ADD - L-ASCORBATE 2 - PHOSPATE -35 PCT, attracting Anti Dumping Duty - petitioner's claim for refund of ADD was rejected on two grounds, namely, that the petitioner had not filed the refund claim of ADD within one year from the levy of ADD and that the ADD was not paid under protest , which are against the requirements under Section 27 of the Customs Act. HELD THAT - The petitioner's claim for refund has been rejected stating that the claim is made after a period of one year from the date of payment and that the petitioner had not produced evidence to the effect that the duty was paid under protest . When this Court in its earlier order dated 18.08.2015 had observed that the authority concerned should pass a speaking order after adjudication, the Deputy Commissioner of Customs had held that ADD was not leviable on the subject goods and that the importer is entitled for consequential relief, I am unable to comprehend as to how the Assistant Commissioner of Customs could resort to any reasoning for rejecting the petitioner's claim for refund, when the Deputy Commissioner of Customs had held that the duty itself was not leviable and that the petitioner would be entitled for consequential relief, which order has become final - As a matter of fact, the second respondent had no other opinion, but to comply with the request of the petitioner for refund, in view of the Order-in-Original dated 19.10.2015 passed by the Deputy Commissioner of Customs. As such, both the reasonings that the application for refund is time barred and that the payment was not made under protest , cannot be sustained. The learned Senior Standing Counsel for the respondents would rely on certain reasonings given in the counter affidavit filed by them with regard to the procedure for paying duty under protest and the statement of the audited Balance Sheet and certificates from the Statutory Auditor. Curiously, these submissions made based on the counter averments, are not the reasonings given by the second respondent in the impugned order for rejecting the petitioner's claim - It is a well settled proposition that the reasoning adduced in the impugned order cannot be improved or substituted by way of a counter affidavit filed in a Writ Petition. As such, in view of the observations made by this Court with regard to the illegality of the reasons cited in the impugned order, the petitioner would be entitled to succeed. Petition allowed.

Summary

Issues:
1. Refund claim rejection based on time limitation and non-payment "under protest."
2. Compliance with court order regarding Anti Dumping Duty (ADD) payment.
3. Rejection of refund application by Deputy Commissioner of Customs.
4. Petitioner's compliance with the court's directions.
5. Lack of reasoning in the rejection of the refund claim.
6. Legal validity of the rejection of the refund claim.
7. The necessity of evidence for payment "under protest."
8. The impact of the Deputy Commissioner's Order-in-Original on the refund claim.

Analysis:
1. The petitioner's refund claim was rejected due to not filing within one year of ADD levy and lack of proof of payment "under protest," contrary to Customs Act requirements.
2. The petitioner initially filed a Bill of Entry, but the department denied release due to ADD on certain goods. The court directed payment of 50% ADD for release pending adjudication.
3. The Deputy Commissioner later ruled ADD not applicable and entitled the petitioner to relief. However, the refund application was rejected for being late and lacking "under protest" evidence.
4. The petitioner complied with the court's directions by paying 50% ADD and securing a bond, leading to subsequent release of goods.
5. The rejection of the refund claim lacked reasoning and failed to consider the court's previous order and the Deputy Commissioner's decision.
6. The rejection of the refund claim was legally questionable given the Deputy Commissioner's final decision that ADD was not applicable.
7. The respondent argued for specific procedures for paying "under protest" and evidence to prevent unjust enrichment, which were not adequately addressed in the rejection.
8. The Deputy Commissioner's Order-in-Original, determining no ADD liability, should have influenced the refund decision, rendering the rejection invalid.

This detailed analysis highlights the procedural and substantive issues surrounding the rejection of the petitioner's refund claim, emphasizing the legal complexities and inconsistencies in the decision-making process.