2014 (3) TMI 640 - HC - Customs

Refund claim - Anti-dumping duty under protest - Bar of limitation - Held that - since the goods imported in this case are of the same description which has not been denied by the Customs authorities no anti-dumping duty can be levied. Thus, in terms of Section 9A which states that refund shall be made of so much of the anti-dumping duty which has been collected as in excess of the anti-dumping duty as so reduced , the CC(A) held that the duty paid was liable to be refunded even though the original assessment order was not challenged - duty became refundable as a consequence of the order of the Supreme Court in Commissioner of Customs v. M/s Relaxo Rubber and Anr. 2006 (3) TMI 721 - SUPREME COURT - The refund application, therefore, must be filed by the assessee within one year from the date of the order in Relaxo Rubber, i.e. March 8, 2006.The refund application having been made on July 24, 2006 was thus made within the limitation period. Whether the 2009 Amendment of Section 9A(8) (Finance (No. 2) Act, 2009) has retrospective application w.e.f. 1st January, 1995, thus causing Section 27 of the Customs Act to apply over and above Sections 9A and 9AA of the CTA. - Held that - The ruling in Sneh Enterprises (2006 (9) TMI 179 - SUPREME COURT OF INDIA) is of no consequences to the question before this Court - Section 27 of the Customs Act is to be incorporated through this provision, as regards refund claims w.e.f. 1st Jan 1995, only as far as may be applicable, i.e. as far as is not covered by Sections 9A and 9AA of the CTA. As concluded earlier, since Section 9AA of the CTA is a complete code, Section 9A(8) has extremely restricted application in its allusion to provisions of the Customs Act, so far as may be in their application to the CTA itself - Decided against Revenue.

Summary

Issues Involved:

1. Applicability of Section 9A(2)(b) of the Customs Tariff Act in the context of anti-dumping duty refunds.
2. Retrospective application of Section 9A(8) of the Customs Tariff Act and its relation to Section 27 of the Customs Act, 1962.

Issue-Wise Detailed Analysis:

1. Applicability of Section 9A(2)(b) of the Customs Tariff Act:

The primary issue was whether Section 9A(2)(b) of the Customs Tariff Act (CTA) applies to the case at hand, which involves a refund claim for anti-dumping duty. The respondent (assessee) had paid anti-dumping duty under protest and later sought a refund. The Assistant Commissioner (Refund) initially rejected the claim, citing that the assessee should have appealed the assessment order under Section 128 of the Customs Act. The CESTAT, however, directed the refund, stating that the refund of anti-dumping duty was governed by the special provision of Section 9A(2)(b) of the CTA, not the general provision of Section 27 of the Customs Act. The CESTAT's reasoning was based on the Supreme Court's decision in Sneh Enterprises v. Commissioner of Customs, which supported the view that anti-dumping duties have a specific refund mechanism under the CTA.

2. Retrospective Application of Section 9A(8) of the Customs Tariff Act:

The second issue was whether the amendment to Section 9A(8) of the CTA by the Finance Act, 2009, which made the provisions of the Customs Act, 1962 applicable to anti-dumping duties retrospectively from 01.01.1995, applied to this case. The revenue argued that with the amendment, Section 27 of the Customs Act clearly applied to anti-dumping duties, as affirmed by the Supreme Court in Priya Blue Industries Ltd. The respondent countered that the appeal was time-barred and that the decision in Sneh Enterprises had settled that Section 9A(8) was not retrospective. The court noted that Section 9A(8) was initially introduced by the Finance Act, 2000, and amended in 2004 and 2009. The court concluded that Section 9AA of the CTA, which provides a complete mechanism for refund claims specific to anti-dumping duties, should prevail over the general refund provisions of the Customs Act. Therefore, the retrospective application of Section 9A(8) did not affect the specific refund mechanism under Section 9AA.

Conclusion:

The court held that the refund of anti-dumping duty should be governed by the specific provisions of the CTA, particularly Section 9AA, and not the general refund provisions of the Customs Act. The CESTAT's decision to direct the refund was upheld, and the revenue's appeal was dismissed. The court clarified that the retrospective amendment to Section 9A(8) did not override the specific refund mechanism provided under Section 9AA of the CTA. The questions of law were answered against the revenue and in favor of the assessee.