Page 223 - ELT_1st July 2020_Vol 373_Part 1

2020 ] HARSH COMMODITIES PVT. LTD. v. COMMISSIONER OF CUSTOMS, KANDLA 133

out supra, an end user to that extent. Just as a final consumer cannot claim a re-
fund of tax liability devolving on a manufacturer precedent in the chain of value
added, an assessee who is an end user is similarly excluded from entitlement for
refund. Had inputs representing the accumulated credit been available in stock,
those could have been cleared by debit such credit thus obviating the need for
claiming refund. Such is not the situation of the applicant. Grant of refund
would, therefore, be tantamount to acknowledging incorrect application of rate
of duty on the manufacturer preceding the applicant in the value added chain. In
the absence of such a finding, it would be contrary to Article 265 of the Constitu-
tion to reduce the tax liability of that assessee. The denial of refund by the lower
authorities cannot be faulted.
12. The rectification sought in the application is recall of the order to
find in favour of the applicant by complying with the requirements of judicial
discipline. After considering the various decisions cited in favour of applicant,
the outcome has not varied. No purpose can be addressed by recall of the order.
13. Consequently, the application is rejected.
(Pronounced in Court)
______

2020 (373) E.L.T. 133 (Tri. - Ahmd.)
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[COURT NO. III]

S/Shri Ramesh Nair, Member (J) and Raju, Member (T)
HARSH COMMODITIES PVT. LTD.
Versus

COMMISSIONER OF CUSTOMS, KANDLA
Final Order Nos. A/10422-10423/2020-WZB/AHD, dated 7-2-2020 in Appeal Nos.
C/198-199/2011
Anti-dumping duty on import of tyres, tubes and flaps - Final duty de-
termined more than provisional duty - Imports made during interregnum pe-
riod i.e. between date of lapse of provisional Anti-dumping duty imposed un-
der Notification No. 106/2006-Cus. and date of imposition of final Anti-
dumping duty under Notification No. 88/2007-Cus. - Anti-dumping duty men-
tioned as ‘Nil’ in Bills of Entry as there was no difference between rate of An-
ti-dumping duty and value declared by assessee - Revenue raising demand of
differential duty on the ground that Rule 21 of Customs Tariff (Identification,
Assessment and Collection of Anti-dumping Duty on Dumped Articles and
for Determination of Injury) Rules, 1995 inapplicable as Anti-dumping duty
on provisional basis neither imposed nor collected from assessee - HELD : At
time filing of Bills of Entry, Anti-dumping duty was imposed and since Anti-
dumping duty arrived at, was zero, assessee was not required to make any
payment on assessment of Bills of Entry - Imposition and collection of Anti-
dumping duty at time of assessment of Bill of Entry, clearly established -
Moreover, in case of any difference between rate of Anti-dumping duty in

EXCISE LAW TIMES  1st July 2020  223