9911796707
TMI Blog2019 (1) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification has not been complied with. The bond executed does not make any distinction between the duty leviable, but prescribes that what so ever duties that have been exempted in terms of this notification including the anti-dumping duty is required to be paid in case the conditions of notification are not fulfilled. We are not in position to agree with the contention of the appellant that the Bond/ LUT executed by them do not cover the anti dumping duty leviable on the imported material at the time of importation/ clearance of the imported material - The appellants have themselves admitted that they had not fulfilled the export obligation as specified in the Advance License issued to them by the Director General Foreign Trade. In fact they have themselves paid the duty in terms of the said bond due as per their determination on 23/10/2008. Demand is in respect of the duty short paid by the appellants on their own determination. We are not in position to agree with the submissions of the appellant. Section 28 of the Customs Act, 1962 - period of limitation - Held that:- In the present case no duty has been short levied or short paid at the time of clearance, of goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants had not exported the entire quantity required to fulfill the entire export obligation appellants were directed by the Joint Director, DGFT to pay duty on all items imported without payment of duty. Appellants paid the duty as directed and Jt Director DGFT issued the redemption letter on 06.02.2009. 2.3 However before cancelling the LUT Bond dtd 13.04.2004, Customs Authority issued a Show Cause Notice dated 11.06.2009 demanding Anti Dumping duty on Alpha Dane Salt for excess quantity of 1686.70 Kgs amounting to ₹ 6,86,759/- along with interest. 2.4 Show Cause Notice was adjudicated as per the order of adjudicating authority, supra. On appeal Learned Commissioner (Appeal) upheld the order in original. Aggrieved by the order of Commissioner (Appeal) Appellants have filed this appeal. 3.1 In their appeal appellants have challenged the order of Commissioner (Appeal) on following grounds:- i. While confirming the demand of duty Commissioner (Appeal) had relied upon Section 143A of the Customs Act, 1962. In their understanding the said section was inserted by section 17 Customs, Central excise and Salt and Central Board of Revenue (Amendment) Act, 1978, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Dharampal Lalchand Chug [2015 (323) ELT 753 (Bom)], and stated that by resorting to the LUT/ Bond, the period of limitation as prescribed by the Section 28 cannot be surpassed. The demand of duty if required to be made will have to be made within the period of limitation prescribed. 4.3 Arguing for the revenue learned Authorized Representative submitted i. Notification No 43/2002-Cus under which the goods were cleared without payment of duty provided exemption from duties of custom, leviable subject to certain conditions. Since these conditions were not fulfilled subsequently the duty not paid was required to be paid by the appellant, in terms of Bond/ LUT executed by the appellant for claiming the exemption. ii. The claim of the appellant that they had not bound themselves to pay anti dumping duty leviable cannot be justified as they have bound themselves to pay the custom duty but for the exemption claimed under Notification. iii. The appellants have paid the duty in the present case on 23/10/2008 and the Show Cause Notice making the demand of duty was issued on 27.05.2009, during the period when the Bond/ LUT executed by the appellants was still in force. Thus d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation. - In this notification, - . 5.3 From the plain reading of the notification it is quite evident that the exemption has been granted from the payment of whole of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), and from the whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon respectively under sections 3, 8 and 9A of the said Customs Tariff Act. For availing the said exemption importer is required to execute a bond binding himself to pay on demand an amount equal to the duty leviable, but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been complied with, 5.4 The Bond that is thus executed, binds the importer to pay an amount equal to the duty leviable, but for exemption, on the imported material in respect which conditions as specified in the notification has not been complied with. The bond executed does not make any distinction between the duty leviable, but prescribes that what so ever duties that have been exempted in terms of this notification including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Limited v. Collector of Customs, Bombay [2001 (129) E.L.T. 162 (Tri. - LB)] held that since the matter is covered by Section 9A of the Customs Tariff Act, doctrine of unjust enrichment does not apply. It was argued before us that though the respondent has produced sufficient material on record, the tribunal did not go into it. 3. We have been pointed out the judgment of the Supreme Court in the case of Sahakari Khand Udyog Mandal Limited v. Commissioner of Central Excise Customs reported in 2005 (181) E.L.T. 328 (S.C.) where now the Supreme Court has held that even where the provisions of Section 11B of the Central Excise Act do not apply, the doctrine of unjust enrichment can apply and, therefore, merely because the matter is covered by Section 9A, operation of doctrine of unjust enrichment may not be excluded. 4. In our opinion in view of the judgment of the Supreme Court, the order which is impugned in the appeal cannot be sustained. It will have to be set aside and the matter will have to be remanded back to the Tribunal for reconsideration on both the questions which were argued before us. The tribunal in the light of the judgment of the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the plain language of the statute or the words of the section cannot be brushed aside or ignored. We find that the words being such and therefore, we cannot accept this contention of Mr. Pakale. 5.10 The said decision of the Hon ble Bombay High Court do not advance the case of the appellants any further. In that case the issue was not in respect of fulfillment of an export obligation in future, but demand was in respect of the goods cleared from the factory in contravention of the provisions of the exemption notification. The demand of duty in respect of the goods cleared in the case before the Bombay High Court was not dependent on the fulfillment of subsequent obligation, whereas in the present case the demand has arisen on account of non fulfillment of the export obligation as specified in the advance license. The appellants have themselves admitted that they had not fulfilled the export obligation as specified in the Advance License issued to them by the Director General Foreign Trade. In fact they have themselves paid the duty in terms of the said bond due as per their determination on 23/10/2008. Demand is in respect of the duty short paid by the appellants on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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