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TMI Blog2014 (3) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective 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. - Custom. A. 3/2013, C.M. APPL.7238/2013 (for condonation of delay) - - - Dated:- 10-3-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Sh. Priyadarshi Manish and Ms. Anjali Manish, Advocates. For the Respondent : Sh. Rahul Kaushik, Advocate. ORDER Mr. Justice S. Ravindra Bhat 1. This is an appeal under Section 130 of the Customs Act, 1962, against the Final Order No. C/240/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. 8. 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. 5. The assessee s claim that the duty was mistakenly paid, without challenging the assessment order, was rejected. The assessee successfully appealed this order to the Commissioner of Customs (Appeals) (hereafter CC(A) ). The CC(A) held that refund of anti-dumping duty was covered under the special provision of Section 9A(2)(b) of the Customs Tariff Act, 1962 and not under the general provision of Section 27 of the Customs Act, 1962, to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the revenue, by Mr. Rahul Kaushik, learned counsel, that with amendment to CTA and the introduction of Section 9A(8), application of Section 27 of the Customs Act, is now no longer in doubt. It was argued that Priya Blue Industries Ltd. (supra) has placed the matter beyond any controversy. In case the importer or assessee does not carry the matter in appeal and the refund application is filed beyond the prescribed period, there is no question of its being entertained. Counsel relied on various amendments made by Parliament to provisions of the CTA in this regard, to say that provisions of the Customs Act were to apply as far as may be to the CTA, particularly the anti-dumping provisions. Learned counsel submitted that the retrospective amendment, by Act 33 of 2009, with effect from 01-01-1995, proves that Section 27 applied always. 8. Mr. Priyadarshi Manish firstly argued that the revenue s appeal should not be considered because it is hopelessly timebarred. It was argued on the merits, that the decision in Sneh Enterprises (supra) has settled that Section 9A (8) is not retrospective. In this case, the goods had landed in January, 2000; the anti-dumping duty was later confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a proper comparison, the normal value shall be either - (a) comparable representative price of the like article when exported from the exporting country or1[territory to] an appropriate third country as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin. (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the antidumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. (6) The margin of dumping as referred to in subsection (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 9A. (2) The Central Government may, by notification in the Official Gazette, make rules to - (i) provide for the manner in which and the time within which the importer may make application for the purposes of sub-section (1); (ii) authorise the officer of the Central Government who shall dispose of such application on behalf of the Central Government within the time specified in such rules; and (iii) provide the manner in which the excess duty referred to in sub-section (1) shall be - (A) determined by the officer referred to in clause (ii); and (B) refunded by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, after such determination.] 10. It would be necessary to notice that the charging provision under CTA, i.e. Section 3, never envisioned a duty of the kind imposed under Section 9A. CTA applied, as originally visualized, to countervailing and additional duties; the Supreme Court in its decisions recognised that these duties were of customs. However, that anti-dumping duty is not a duty of customs; Section 9A itself clarifies that the imposition of duty is dependent upon existence of circumstances and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; (c) XXXXXX XXXXXX 14. In the present case, the duty became refundable as a consequence of the order of the Supreme Court in Commissioner of Customs v. M/s Relaxo Rubber and Anr. under Civil Appeal no. 7180/7181 of 2001 on March 8, 2006.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. 15. It is pertinent to note that the decision in Sneh Enterprises (supra) is of no relevance in this case. The facts therein were that certain articles were imported by the appellant in April 2002, although a bill of entry was filed by the appellant with the Customs authorities on 22.5.2002. An anti-dumping duty was sought to be imposed vide a notification of 22.5.2002 on these goods. Revenue sought to apply Section 15 of the Customs Act, by which the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erted by Section 89 of the Finance Act,2000 (Act 10 of 2000). The original Section 9A(8) as inserted in 2000 read: (8) The provisions of the Customs Act, 1962, (52 of 1962) and the rules and regulations made thereunder, relating to non-levy, short levy, refunds and appeals shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. The provision was only amended by the Finance Act, 2004 to read: (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, 4[relating to, the date for determination of rate of duty, non-levy, short-levy, refunds, interest, appeals, offences and penalties] shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. 18. To answer the question of retrospective application of the 2009 Amendment to Section 9A(8), it is pertinent to note that this amendment was made via the Finance (No. 2) Act, 2009 w.e.f. 1st January, 1995. Section 9A(8) now reads: (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X
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