By TIOL News Service

MUMBAI, JAN 10, 2017: THE importer filed a claim for refund of Anti Dumping Duty u/s 9AA of the Customs Tariff Act, 1975 on the ground that the Sunset review order has reduced the ADD to 10.27%as against earlier prescribed rate of 27.97%.

The original adjudicating authority came to a conclusion that the Sunset review order was passed after examining data only for the period 1.4.2000 to 31.3.2001 and, therefore, only for that period the Anti Dumping margin is 10.27%. Inasmuch as refund for this period only can be considered, he held, but for lack of documentary evidence, the same was rejected.

The Commissioner (A) held that no refund whatsoever is available to the Appellant as no order in terms of Section9AA has been passed by the competent authority and moreover, the claim would be hit by the doctrine of unjust enrichment.

Aggrieved, the appellants are before Tribunal and submit -

+ It is not open to Commissioner (Appeals) to withdraw the relief which was already granted by the original adjudicating authority [for the period 1.4.2000 to 31.3.2001] since this portion of the order had not been challenged by the Revenue.

+ Section 9AA is a self-contained code for refund and section9A(8) does not apply to Section 9AA of the Customs Tariff Act, 1975.

The Bench inter alia observed -

++ Since Revenue has not contested the order-in-original, it is not open to Commissioner (Appeals) to change it in any manner other than in respect of issue on which the appellant had filed an appeal. Thus, the order of the Commissioner (Appeals) which deals with period 1.4.2000 to 31.3.2001 is set aside.

In the matter of the second issue viz. unjust enrichment, the Bench observed that the issue is premature as such issue arises only if refund is held to be admissible. In as much as since both the lower authorities have found it to be inadmissible, therefore, their observations regarding unjust enrichment are superfluous and are set aside, the Bench added.

The CESTAT also adverted to section 9AA[Refund of Anti-dumping duty in certain cases] of the Customs Tariff Act, 1975 and after extracting the same observed that the section 9AAis a self contained code and requires the appellant to make an application for re-determination of margin of anti-dumping.

Concurring with these findings of the Commissioner(A), the Bench held that refund can be sanctioned only when an order in terms of Section 9AA(i) is passed and that refund cannot be sanctioned under Section 9AA to the appellants on the strength of any order issued under clause (5) of Section 9A.

Conclusion: The impugned order is set aside insofar as it relates to refund for the period 1.4.2000 to 31.3.2001 and the matter is remanded to the original adjudicating authority.

The appeal was partly allowed.

(See 2017-TIOL-82-CESTAT-MUM)