2009 (10) TMI 380 - AT - Customs

Implementation of Tribunal s order- The appellants purchased a vessel from M/s. Metal Scrap Trading Corporation Limited, Kolkata (MSTC) as per agreement dated 18-1-1987. There was a dispute about the LDT of the vessel and therefore, the assessment was made provisional, In the first round of litigation and matter reached the Tribunal and Tribunal remanded the matter to Original Adjudicating Authority to finalize the assessment vide Order No. 1589/96-A dated 20-5-1996. Held that- I do not find anything wrong in the order passed by the Assistant Commissioner since he has decided both the issues. If the appellant is aggrieved with the decision, remedy is not in seeking directions from the Tribunal but in filing the appeal. In view of the discussions above, I hold that miscellaneous application filed by the applicants is not maintainable and accordingly, the same is rejected.

Issues:
1. Direction sought by appellant for implementation of Tribunal's order and refund claim.
2. Dispute over vessel purchase assessment and refund claim.
3. Applicability of Rules 40 & 41 of CESTAT (Procedure) Rules, 1982.
4. Assistant Commissioner's order dropping the demand and allowing refund claim.
5. Applicant's grievance over refund claim adjustment and interest payment.
6. Tribunal's direction regarding assessment and refund claim.
7. Maintainability of the miscellaneous application.

Analysis:

Issue 1: Direction sought by appellant for implementation of Tribunal's order and refund claim
The appellant sought a direction from the Tribunal for the departmental authorities to implement and obey the Tribunal's order dated 20-2-2008 and consider the submissions made by the appellant on 23-6-2009. The appellant relied on Rules 40 & 41 of CESTAT (Procedure) Rules, 1982 for this purpose.

Issue 2: Dispute over vessel purchase assessment and refund claim
The appellants purchased a vessel from M/s. Metal Scrap Trading Corporation Limited, Kolkata, leading to a dispute about the LDT of the vessel, resulting in provisional assessment. The matter underwent litigation rounds, reaching the Tribunal and the Hon'ble Gujarat High Court, which directed the assessment to be finalized by the adjudicating authority. A refund claim was also filed by the appellant, which was remanded by the Tribunal in 1996.

Issue 3: Applicability of Rules 40 & 41 of CESTAT (Procedure) Rules, 1982
The Tribunal noted that the Assistant Commissioner's order was appealable, and the appellant should have pursued the case by filing an appeal against the decision. The Tribunal found no applicability of Rules 40 & 41 in this case, as the Assistant Commissioner had addressed both the assessment and refund claim issues as directed by the Tribunal.

Issue 4: Assistant Commissioner's order dropping the demand and allowing refund claim
The Assistant Commissioner, in his order dated 30-6-2009, finalized the assessment, dropping the originally confirmed demand amounting to Rs.7,11,237/- and allowing the importer to file a refund claim under Section 27 of the Customs Act, 1962.

Issue 5: Applicant's grievance over refund claim adjustment and interest payment
The applicant was aggrieved by the Assistant Commissioner's order, claiming that the sanctioned refund amount was adjusted against the demand pending appeal and not refunded despite the Tribunal's order to return the amount. The applicant argued for interest payment on the refunded amount from 20-8-1996 till the actual payment date.

Issue 6: Tribunal's direction regarding assessment and refund claim
The Tribunal's order dated 20-2-2008 remanded the issue of the refund claim to the Original Adjudicating Authority. The Tribunal emphasized the need for re-adjudication by the authorities and directed the matter to be considered in light of the order passed in de-novo proceedings.

Issue 7: Maintainability of the miscellaneous application
The Tribunal held that the miscellaneous application filed by the applicants was not maintainable as the Assistant Commissioner had passed an appealable order, and the remedy for the appellant lay in filing an appeal rather than seeking directions from the Tribunal.

This detailed analysis covers the various issues involved in the legal judgment delivered by the Appellate Tribunal CESTAT, Ahmedabad, providing a comprehensive understanding of the case and the Tribunal's decision.

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