2013 (1) TMI 670 - HC - Customs

Refund of the excess anti-dumping duty - denial as refund claim as pre-mature - refund was filed on 16.1.2007, namely within 17 days after the date of final notification issued under Section 9A(2) of the Customs Tariff Act, 1975 - Held that - The words in pursuance of an order of assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained. In the case on hand, the wrong payment of duty is not sought to be refunded. The payment of provisional anti-dumping duty is subject to the finalization of the anti-dumping duty in terms of Section 9A(2)(b) of the Customs Tariff Act, 1975 and refund becomes automatic after the final notification is issued. There is no necessity for filing an appeal or seeking modification of the order, so as to seek refund. For the foregoing reasons, the writ petition is allowed and the impugned proceedings dated 25.4.2007 is set aside and the respondents are directed to process the petitioner s application for refund forthwith.

Issues Involved:
1. Issuance of a writ of Certiorarified Mandamus.
2. Refund claim of excess anti-dumping duty.
3. Interpretation of the provisions of the Customs Tariff Act, 1975 and the Customs Act, 1962.
4. Necessity of reassessment or appeal for refund claims.

Issue-wise Detailed Analysis:

1. Issuance of a writ of Certiorarified Mandamus:
The petitioner sought a writ of Certiorarified Mandamus to call for records, quash the second respondent's decision dated 25.4.2007, and direct the respondent to process and pay a refund claim of Rs. 6,48,084.52 with interest. The second respondent had declined to process the refund application, stating that the original assessment order must be lawfully modified or revised in favor of the petitioner to seek the refund.

2. Refund claim of excess anti-dumping duty:
The petitioner imported Mulberry Silk Fabrics from China, and provisional anti-dumping duty was levied based on Notification No.52/2006-Cus, dated 31.5.2006. A final notification (No.121/2006-Cus., dated 26.12.2006) reduced the anti-dumping duty. The petitioner applied for a refund of the excess duty on 16.1.2007, which was rejected by the second respondent, citing the need for reassessment or an appellate order. The court emphasized that Section 9A(2) of the Customs Tariff Act, 1975 mandates a refund of excess anti-dumping duty paid after final determination, making the refund automatic without needing reassessment or an appeal.

3. Interpretation of the provisions of the Customs Tariff Act, 1975 and the Customs Act, 1962:
The court analyzed Sections 9A(1), 9A(2), and 9A(8) of the Customs Tariff Act, 1975. Section 9A(1) provides for provisional anti-dumping duty, Section 9A(2) for finalization and refund of excess duty, and Section 9A(8) applies the provisions of the Customs Act, 1962, including those related to refunds. The court concluded that the refund should be processed as per the final notification without requiring reassessment or an appeal.

4. Necessity of reassessment or appeal for refund claims:
The court rejected the second respondent's reliance on the Supreme Court decisions in M/s.Super Cassette Industries and M/s.Priya Blue Industries, noting that those cases involved different factual scenarios where the assessment orders were not challenged. In contrast, the present case involved a provisional anti-dumping duty subject to finalization, making the refund automatic upon issuance of the final notification. The court held that the second respondent's requirement for reassessment or an appeal was contrary to the provisions of the Customs Tariff Act, 1975 and the Customs Act, 1962.

Conclusion:
The writ petition was allowed, and the impugned proceedings dated 25.4.2007 were set aside. The respondents were directed to process the petitioner's refund application forthwith, emphasizing that the refund becomes automatic after the final notification and does not require reassessment or an appeal. No costs were imposed, and related miscellaneous petitions were closed.

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