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2023 (1) TMI 156 - HC - CustomsRefund of amount with interest from the date of levy till final payment at the rate of 15% per annum - rejection of refund claim of the petitioners in the remand proceedings on the ground that the claim of the petitioners is not maintainable as the petitioners did not challenge the assessment order under three Bills of Entry and in absence of challenge to the assessment orders by which Anti Dumping Duty was levied - HELD THAT - It appears that the petitioners paid the Anti Dumping Duty as per the directions of the respondent authorities to clear the goods imported on 21.05.2015. Admittedly on that date, Notification No.15/2014 dated 11.4.2014 levying Anti Dumping Duty for a period of six months was not applicable. The contention raised on behalf of the respondents that Notification No.21/2015 dated 22.5.2015 is issued with effect from 11.04.2014 is not tenable in law in view of decision of the Apex Court in case of G.M. Exports 2015 (9) TMI 1162 - SUPREME COURT , wherein the Apex Court decided the question of law as to whether Anti 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.
Issues Involved:
1. Entitlement to refund of Anti Dumping Duty. 2. Applicability of the decision in G.M. Exports. 3. Applicability of the decision in Priya Blue Industries Ltd. 4. Compliance with appellate authority's directions. 5. Maintainability of writ petition under Article 226 for refund. Issue-wise Detailed Analysis: 1. Entitlement to Refund of Anti Dumping Duty: The petitioners sought a refund of Rs. 23,62,796.00 paid as Anti Dumping Duty, claiming it was levied without authority of law. They argued that there was no Anti Dumping Duty applicable between the expiry of Notification No. 15/2014 and the issuance of Notification No. 21/2015. The petitioners referenced the Apex Court's decision in G.M. Exports, which held that no Anti Dumping Duty is payable during the gap between provisional and final notifications. Despite this, the respondent authorities rejected the refund claim, leading to multiple appeals and remands. 2. Applicability of the Decision in G.M. Exports: The Apex Court in G.M. Exports held that Anti Dumping Duty cannot be levied for the period between the expiry of a provisional notification and the issuance of a final notification. The appellate authority directed the adjudicating authority to consider this decision, which was ignored. The High Court reiterated that the decision in G.M. Exports is binding and applicable to the petitioners' case, making the levy of Anti Dumping Duty during the gap period illegal. 3. Applicability of the Decision in Priya Blue Industries Ltd.: The respondent authorities cited Priya Blue Industries Ltd., arguing that the refund claim was invalid without challenging the original assessment orders. However, the appellate authority and the High Court distinguished this case, noting that it did not apply to the finalization of provisional Anti Dumping Duty. The High Court emphasized that the decision in G.M. Exports took precedence, and the assessment orders did not need modification as the duty was not in force when the goods were imported. 4. Compliance with Appellate Authority's Directions: The appellate authority had remanded the case to the adjudicating authority with clear directions to reconsider the refund claim in light of G.M. Exports and provide a reasoned order. The adjudicating authority failed to comply, justifying its inaction by reiterating previously rejected arguments. The High Court criticized this non-compliance, stating that the lower authority must follow the higher authority's binding directions and cannot ignore them. 5. Maintainability of Writ Petition under Article 226 for Refund: The High Court affirmed that a writ petition is maintainable under Article 226 for refund claims when tax or money is realized without authority of law. Citing precedents, the Court held that the petitioners were entitled to a refund with interest, as the Anti Dumping Duty was collected unlawfully. The High Court directed the respondent authorities to refund the amount with interest at 6% per annum from the date of levy till final payment within eight weeks. Conclusion: The High Court allowed the petition, directing the respondent authorities to refund Rs. 23,62,796.00 with interest at 6% per annum, emphasizing the binding nature of appellate directions and the illegality of the Anti Dumping Duty levied during the gap period. The Court made the rule absolute to the extent of the refund and interest, with no order as to costs.
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