Partly allowed

M/s.Alkraft Thermo v. The Deputy Commissioner of

Madras HC13 Jul 2018WP/32161/2017

Case brief

AI extract

What is this about?

The Court disposed of two writ petitions. It held that no anti-dumping duty is leviable on the specified aluminium imports per DGAD clarification. The Court directed the Customs Authority to process the refund claim for duty paid under protest.

What did the court decide?

Direction to file refund claim within two weeks and consequential directive to the Authority to refund the amount within six weeks.

M/s.Alkraft Thermo Vs The Deputy Commissioner of — Customs and Excise | Madras HC (2018)

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In the High Court of Judicature at Madras

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Dated : 13.7.2018

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Coram :

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The Honourable Mr.Justice T.S.SIVAGNANAM

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Writ Petition Nos.32161 & 32162 of 2017 & WMP.No.35330 of 2017

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M/s.Alkraft Thermo Technologies Private Limited, rep.by its Chief Financial Officer Mr.P.Sirajudeen ...Petitioner in both WPs

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The Deputy Commissioner of Customs, Group IV, Customs House, No.1, Rajaji Salai, Chennai-1.

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...Respondent in both W.Ps

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PETITIONS under Article 226 of The Constitution of India praying for the issuance of

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(i) a Writ of Declaration to declare aluminium strip in coil/foil alloys classifiable under Sub-Heading 7607 11 90 of the Customs Tariff Act, 1975 answering the description aluminium manganese silicon based alloy aluminium foil/coil for use in the manufacture of heat exchangers such as radiators and inter coolers for automobiles imported from Peoples Republic of China outside the purview of Notification No.23/2017-Customs (ADD) dated 16.5.2017 (WP. No.32161 of 2017); and

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(ii) a Writ of Mandamus to direct the respondent to refund a sum of Rs.33,98,949/- forthwith collected contrary to law from the petitioner on imports covered by attached Schedule of Bills of Entry and pass a speaking order in respect of the same Bills of Entries as per Section 17(5) of Customs Act, 1962 (WP.No.32162 of 2017).

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For Petitioner : Mr.R.Anish Kumar For Respondent : Mrs.R.Hemalatha COMMON ORDER

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Heard both.

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The petitioner filed W.P.No.32161 of 2017 seeking to declare aluminium strip in coil/foil alloys classifiable under Sub-Heading 7607 11 90 of the Customs Tariff Act, 1975 answering the description aluminium manganese silicon based alloy aluminium foil/coil for use in the manufacture of heat

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https://hcservices.ecourts.gov.in/hcservices/

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exchangers such as radiators and inter coolers for automobiles imported from Peoples Republic of China outside the purview of Notification No.23/2017-Customs (ADD) dated 16.5.2017.

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In W.P.No.32162 of 2017, the petitioner seeks a direction to the respondent to refund a sum of Rs.33,98,949/- forthwith collected contrary to law from the petitioner on imports covered by attached Schedule of Bills of Entry and pass a speaking order in respect of the same Bills of Entries as per Section 17(5) of Customs Act, 1962.

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This Court, while entertaining these writ petitions on 22.12.2017, directed provisional release of the goods in question on the petitioner furnishing a bank guarantee for 25% of the differential duty and it was also made clear that this is subject to the ultimate orders to be passed in these writ petitions. This payment has been made by the petitioner.

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Even prior to approaching this Court, the petitioner paid anti dumping duty to the tune of Rs.33,98,949/- in respect of eight (8) Bills of Entry. The matter was considered by the respondent and an Order-in-Original dated 05.7.2018 has been passed. In the said order dated 05.7.2018, the payments effected by the petitioner in November and December 2017 have been admitted. The respondent further stated that no anti dumping duty can be levied on the aluminium foils imported by the petitioner based on the clarification given by the Directorate General of Anti Dumping vide proceedings in F.No.7/17/2017- DGAD and that the same has been approved by the Commissioner of Customs, Chennai II Commissionerate. Accordingly, the respondent vacated the protest and the petitioner was granted liberty to file a claim for refund of the anti dumping duty paid under protest by following the procedure stipulated.

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Thus, the embargo put on the petitioner no long survives in the light of the order dated 05.7.2018. Hence, the prayer sought for in W.P.No.32161 of 2017 has become academic and it has to be held that no anti dumping duty can be levied on the import of aluminium foils done by the petitioner under the concerned Bills of Entry. Accordingly, W.P.No.32161 of 2017 is disposed of. No costs. Consequently, the connected WMP is closed.

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With regard to the prayer sought for in W.P.No.32162 of 2017 to refund the sum collected from the petitioner, there can be no difficulty in ordering such a prayer since the respondent granted liberty to the petitioner to file a claim for refund of the anti dumping duty paid under protest.

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Admittedly, a sum of Rs.33,98,949/- has been paid under protest. Further, a sum of Rs.1,83,200/- was paid pursuant to the interim orders passed by this Court wherein it was made clear that it is subject to the outcome of the writ petitions.

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Therefore, W.P.No.32162 of 2017 is disposed of by directing the petitioner to file a claim for refund before the appropriate Officer within a period of two weeks from the date of receipt of a copy of this order. On receipt of such a claim, the Authority concerned shall consider the same and effect refund of the amount paid by the petitioner under protest within a period of six weeks from the date, on which, the claim for refund is filed in full form. This positive direction is issued since there is no dispute with regard to the petitioner's entitlement on account of the orders passed by the Directorate General of Anti Dumping, as approved by the Commissioner of Customs, Chennai II Commissionerate and followed by the respondent herein. No costs.

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-s/dAssistant Registrar(CS-IX) True Copy Sub-Assistant Registrar To The Deputy Commissioner of Customs, Group IV, Customs House, No.1, Rajaji Salai, Chennai-1. +2 Ccs to Mrs. R. Hemalatha, Advocate sr 46300. +2 Ccs to Ms.R. Anishkumar, Advocate sr 46477.

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WP.Nos.32161 & 32162 of 2017 & WMP.No.35330/2017

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SP(30/07/2018)

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https://hcservices.ecourts.gov.in/hcservices/

M/s.Alkraft Thermo v. The Deputy Commissioner of

Case brief

What is this about?

What did the court decide?

M/s.Alkraft Thermo v. The Deputy Commissioner of

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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