Jayanta Kumar Biswas, J.@mdashThe petitioners in this Article 226 petition dated July 27, 2004 are seeking, inter alia, a mandamus commanding the respondents to refund the amounts paid on account of countervailing duty according to the Circular of the Government of India, Ministry of Finance, Department of Revenue No. 38/2000-Cus., dated May 10, 2000, Annexure PI at p.26.
2. The first petitioner set up a unit for processing plastic scrap at Falta Export Processing Zone. On the basis of the Circular No. 38/2000-Cus. the customs asked it to pay countervailing duty. It moved WP No. 2845 of 2000 challenging the circular. It, however, went on depositing the countervailing duty for clearance of goods for domestic area sales in terms of order of the court dated November 20, 2000. It also submitted provisional duty bond. By final order dated October 16, 2001 the circular and all steps taken by the customs on the basis thereof were quashed. The SLP before the Supreme Court was dismissed as withdrawn. Under the circumstances, claiming a right to refund of the amounts paid for countervailing duty and release of the provisional duty bond, it submitted several representations. Since no step was taken by the customs, it took out this petition.
3. The respondents, appearing through Mrs. Qureshi, advocate, have chosen not to file any opposition. Mr. Chowdhary, counsel for the petitioners, submits that the uncontroverted case in the petition shows that the petitioners are entitled to refund of the amounts they paid from time to time on account of countervailing duty and also to release of the provisional duty bond. He has said that citing the principle of unjust enrichment the respondents cannot refuse to refund the amounts and release the bond, because, in view of the provisional assessment only, there was no scope for the petitioners to pass on the element of the duty to any third party, and the petitioners have actually not passed on the countervailing duty to any third party. His argument is that, in any case, the principle of unjust enrichment, getting the statutory recognition by amendment effected only in 2006, cannot be applied to the present case, as was held in Commissioner of Customs v. Hindako Industries Ltd. 2008 (231) E.L.T. 36 (Guj.).
4. In view of the above-noted facts and circumstances and the position of law, I am of the view that the respondents must refund the amounts the petitioners paid from time to time on account of countervailing duty according to provisions of the circular that was quashed by this Court, and that the petitioners are entitled to release of their provisional duty bond. I find no reason to say that the refund will unjustly enrich the petitioners, who, in view of provisional assessment of duty by the customs, were not in a position to pass on and did not actually pass on, the countervailing element of the duty to any third party. I am also of the view that the petitioners are entitled to interest from the date the circular in question was quashed creating the respondents'' unqualified obligation to refund the amounts the petitioners paid from time to time.
5. For these reasons, I allow the petition and order as follows. The respondents, especially the second and third respondents, are directed to refund all amounts paid by the petitioners from time to time on account of countervailing duty with interest @ 12% per annum from October 16, 2001 till the date of actual payment, and release all provisional duty bonds executed and submitted by the petitioners in connection with countervailing duty liability. Payment and steps in terms of this order shall be made and taken within three weeks from the date of its communication. No costs. Certified xerox according to law.
