2010 (3) TMI 475 - HC - Customs

Interest - writ petition was filed by the writ petitioners/respondents and the same was disposed of by the learned Single Judge of this Court by an order dated 24th June, 2008 directing the Assistant Commissioner of Customs to consider the application and to determine the payment of interest with reasons. The said officer thereafter heard the matter and granted interest at the rate of 9% per annum. The said order granting interest was challenged by the department before the internal Appellate Authority followed by the Revisional Authority under Customs Act unsuccessfully. Thereafter, an appeal had been preferred before the Tribunal concerned, where the application for stay was filed but stay of order was not obtained. Held that- this was perverse and unlawful, and not in terms of the High Court order. Matter remanded for determination of interest in accordance with rate of interest prevailing on date of initial interim order, for period upto passing of determination order. Anti Dumping Duty- excisability challenged in writ petition. Held that- no assessment order could be made until matter was settled. An adjudication authority found that anti dumping duty was not payable. No assessment order required to be passed.

Issues Involved:
1. Challenge to Show Cause Notice for Short Levy
2. Imposition of Anti-Dumping Duty
3. Refund of Anti-Dumping Duty with Interest
4. Calculation and Rate of Interest on Refund
5. Jurisdiction and Authority of the Assistant Commissioner
6. Compliance with Division Bench Orders

Detailed Analysis:

1. Challenge to Show Cause Notice for Short Levy:
The writ petitioners-respondents initially filed a writ petition (W.P.No.1778 of 2000) challenging a show cause notice for short levy concerning five consignments of KHS-68. During the pendency of this writ petition, anti-dumping duty was imposed on the imported materials, prompting another writ petition (W.P.No.2772 of 2001) challenging the imposition of this duty.

2. Imposition of Anti-Dumping Duty:
The second writ petition was admitted, and a stay was granted on the condition that the writ petitioners-respondents deposit the entire amount of the assessed anti-dumping duty with the learned Advocate on Record for the Central Government. The learned Single Judge eventually dismissed the writ petition on January 29, 2002. The writ petitioners-respondents appealed against this dismissal, and the Division Bench directed the appellant to pay the entire anti-dumping duty to the respondents, with a condition for refund with interest if the writ petitioners succeeded.

3. Refund of Anti-Dumping Duty with Interest:
The Division Bench allowed the appeal, setting aside the Single Judge's order and ruling that the writ petitioners-respondents were not liable to pay anti-dumping duty. Consequently, an order was passed allowing the writ petitioners-respondents to apply for a refund with interest. The application for refund was delayed, leading to contempt proceedings, after which the principal amount was refunded, but the interest was neither computed nor paid.

4. Calculation and Rate of Interest on Refund:
The Assistant Commissioner of Customs granted interest at the rate of 9% per annum, which was challenged by the department but upheld by the internal Appellate Authority and the Revisional Authority under the Customs Act. The petitioners/respondents filed a writ application to enforce the Assistant Commissioner's order for payment of interest. The learned Trial Judge did not interfere with the Assistant Commissioner's order.

5. Jurisdiction and Authority of the Assistant Commissioner:
The Assistant Commissioner's decision to grant interest at 9% per annum was criticized for lacking reasons and materials to justify the rate. The Court observed that the decision-making process was not lawful, and the learned Trial Judge failed to note this. The argument that the Division Bench's interim order for refund of interest at the prevailing bank rate was without jurisdiction was dismissed, as the interim order was not challenged appropriately and thus binding.

6. Compliance with Division Bench Orders:
The Division Bench's interim order for refund with interest at the prevailing bank rate was accepted and not varied by the final order. The Court held that the Assistant Commissioner acted under the Court's direction, not under statutory provisions, and the rate of interest should reflect the prevailing bank rate as of May 17, 2002. The Assistant Commissioner was directed to redetermine the matter, considering the prevailing bank rate at the relevant time and providing reasons for the decision.

Conclusion:
The appeal was disposed of with directions for the Assistant Commissioner of Customs to redetermine the interest rate based on the prevailing bank rate as of May 17, 2002, and to provide reasons for the decision. The exercise was to be completed within three months, and there was no order as to costs.

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