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2014 (7) TMI 732 - HC - CustomsLevy of anti-dumping duty beyond five years - retrospective amendment - Validity of anti-dumping duty extension proceedings under Section 9A of the Customs Tariff Act, 1975 ("CTA") - sunset review - Acrylonitrile Butadiene Rubber originating in, or exported from Korea RP - petitioners complain that in the present case, the notice proposing the review was published on 06-01-2014, after the expiration of the original notification. Thus, neither the review for continuing the duty, nor the levy during the pendency of inquiry was valid. - Held that:- If the court were to accept the petitioners' argument about the compelling nature of the requirement that for a sunset review to be valid, not only should it be shown to be initiated before the expiration of the period of the original notification, but also that the public notice in that regard should be shown to be issued and made available before the period, it would be doing violence to the statute. - the initiation took place on 22-12-2013; the notice was published in the Official Gazette on 31-12-2013 though it could be made available on 06-01-2014. Consequently the initiation of the sunset review was valid and proper. The petitioners' first challenge to the legality of the initiation therefore, fails. - Decided against the assessee. Legality of the levy pending sunset review - Held that:- the power under the second proviso to Section 9A(5), after expiry of the date of the original notification, is unavailable. - Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all - The imperative nature of second proviso to Section 9A (5) leaves no room for doubt that in case the Central Government wishes to extend the levy during the sunset review period, it has to comply with the terms of that provision and do so, before expiration of the original period. Not having done so, its attempt to levy the duty through the later notification of 23-01-2014 is without authority of law; it is contrary to the terms of proviso to Section 9A (5).The attempt to recover any amounts as duty, therefore, violates Article 265 of the Constitution of India. - the initiation of sunset review is valid and legal; however the levy of anti-dumping duty through the impugned notification of 23-01-2014 is without authority of law. - petitioner is entitled to get refund - Decided in favor of assessee.
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