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TMI Blog2013 (1) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - W.P.No.31053 of 2012 - - - Dated:- 21-1-2013 - MR. R.SUDHAKAR, J. For Petitioner : Mr.S.Krishnanadh For Respondents : Mr.Mahadevan ORDER This writ petition is filed seeking issuance of a writ of Certiorarified Mandamus to call for the records of the second respondent dated 25.4.2007 in File No.S24/10029/07-Refunds, to quash the same and to direct the said respondent to process and pay the refund claim of the petitioner entity to the tune of 6,48,084.52 with interest. By the proceedings under challenge, the second respondent declined to process the refund application on the ground that the original assessment order has to be lawfully modified or revised in favour of the petitioner/importer in order to seek the refund. 2.1. The brief facts of the case are as follows: The petitioner imported Mulberry Silk Fabrics from China under Bill of Entry No.228652, dated 31.5.2006. The goods were assessed as per tariff applicable and provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in column (6) and produced by the producers specified in the corresponding entry in column (7) and exported by the exporters specified in the corresponding entry in column (8), and imported into India, an anti-dumping duty which shall be equivalent to the difference between the amount specified in the corresponding entry in column (9), in the currency as specified in the corresponding entry in column (11) and per unit of measurement as specified in the corresponding entry in column (10) of the said Table, and the landed value of such imported goods in like currency per like unit of measurement." (emphasis supplied) 2.2. Thereafter, in terms of the provisions of the Customs Tariff Act, 1975, the final anti-dumping duty was determined and notification No.121/2006-Cus., dated 26.12.2006 was issued, which reads as under: "Notification: 121/2006-Cus. dated 26-Dec-2006 Anti-dumping duty on Silk fabrics of weight 20 to 100 grams per meter, originating in, or exported from People's Republic of China. .... And whereas on the basis of the aforesaid findings of the designated authority, the Central Government had imposed provisional anti-dumping duty on the subject goods, vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in column (11) and per unit of measurement as specified in the corresponding entry in column (10) of the said Table, and the landed value of such imported goods in like currency per like unit of measurement". In the final notification, the quantum of anti-dumping duty was reduced as against the higher provisional anti-dumping duty collected on the goods cleared. 2.3. Based on the final notification, the petitioner made an application for refund of the excess anti-dumping duty on 16.1.2007 and that has been rejected by the impugned letter dated 25.4.2007, which reads as under: "Please refer to your refund claim against bill of entry No.228652/31.5.2006. Your refund claim was perused and it is found that the ground for the claim is towards non-availment of notification benefit. It is seen from the documents submitted by you that the re-assessment has not been done. An order of assessment given by the competent authority (Group assessing the bill of entry) can not be reviewed or modified by the Refunds Section as held by the Apex Court in the case of M/s.Super Cassette Industries Vs. Commissioner of Customs [2004 (163) ELT A116(SC)] and M/s.Priya Blue Industries Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation.-For the purposes of this section,- (a) margin of dumping in relation to an article, means the difference between its export price and its normal value; (b) export price , in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) normal value , in relation to an article, means- (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nti-dumping duty, refund of excess anti-dumping duty paid shall be made. 6. In the present case, the application for 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. The second respondent, however, takes a different view in the matter and states that the refund claim is pre-mature and the appropriate authority has to re-assess the bill of entry or there should be an order from the Appellate Authority. 7. Section 9A(1) of the Customs Tariff Act, 1975 provides for imposition of provisional anti-dumping duty and Section 9A(2) of the Customs Tariff Act, 1975 provides for determining the final anti-dumping duty on the articles imported. Clause (b) of Section 9A(2) of the Customs Tariff Act, 1975 provides for refund of the anti-dumping duty which has been collected in excess shall be made. Therefore, in terms of Section 9A(8) of the Customs Tariff Act, 1975 all that the petitioner has to do is to file an application for refund. There is no question of reassessing the bill of entry which has been assessed on the basis of provisional anti-dumping duty. What has been imposed is a provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s.Super Cassette Industries case are as under: "The appellants imported one consignment of thermo plastic polyurethane resin against Bill of Entry, dated 6.8.1986 and paid duty at standard rate at 100% CBD + 40% Ayd. + 40% CV and cleared the goods for home consumption. The Bill of Entry was assessed finally under Section 17 of the Act and duty was paid at the above said rate by the appellants without any protest. Later on, they filed refund claim before the lower authority on the ground that their goods were entitled for concessional rate of duty in terms of Notification No.345/86-Cus, dated 16.6.1986 by virtue of which the duty rate was to be 30% CBD + Ayd Nil + CV Nil. The excess duty paid by them was to the tune of Rs.3,40,156/-." While challenging the assessment order, the appellant therein sought the relief of refund stating that they are entitled to concessional rate of duty in terms of a notification and that was negatived on the ground that the order of assessment has not been challenged in the manner known to law. The Tribunal held that the assessment order under which duty was paid, having not been challenged, has become final. This was upheld by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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