TMI Blog2001 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... of Korea. The product, namely, PVC Resin was subjected to anti dumping duty. Pursuant to preliminary findings on the question of anti dumping duty arrived at by the Designated Authority, Government of India issued Notification No. 3 dated 2-2-1993 levying anti dumping duty at the rate of Rs. 1700 PMT. Pending determination of normal value and the margin of dumping the said duty of Rs. 1700 PMT was provisionally imposed and collected. Thereafter the Designated Authority came to its final finding on the anti dumping duty imposable on the subject goods, namely, PVC Resin. Based on the final finding arrived at by the Designated Authority, anti dumping duty was fixed at a lesser rate of Rs. 1253 PMT by Notification No. 4/94 dated 18-1-1994. As t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the Commissioner (Appeals). That authority disposed of the appeals by order dated 27-3-1996. Appellate Commissioner set aside the order of the adjudicating authority holding that the duty imposed was provisional and consequently the claim for refund made by them is not barred by limitation. In this view of the matter he remanded the entire issue to the lower authority for considering the issue of unjust enrichment. This decision rendered by the Commissioner is under challenge at the instance of the Revenue in appeal Nos. C/371-373/96-A. 4.When appeals filed by the Revenue came up before a learned Member of West Zonal Bench at Mumbai, he took the view that the appeals have to go to the special forum specified in section 9C(5) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rule 21(2) of the Anti Dumping Duty Rules framed under the Customs Tariff Act. Clause (2) of Rule 21 of these rules state : "If, the anti dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer." In the instant case, on the basis of the provisional assessment of the dumping margin, Central Government issued Notification No. 3/93, dated 2-2-1993 fixing an anti dumping duty. This duty was imposed at a higher rate of Rs. 1700 per M.T. on the basis of the provisional estimate of normal value and margin of dumping. Thereafter the Designated Authority found the actual duty that has to be imposed on the goods exported f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th claim for refund of duty. Duty mentioned in that section can only be the duty as defined in Section 2(15) of the Customs Act. Section 2(15) defines 'duty' as a duty of customs leviable under this Act, namely, Customs Act, 1962. Anti-Dumping duty levied under section 9A of Customs Tariff Act cannot be considered as duty realised under Customs Act, 1962. Special provisions have been made under Section 9A for the imposition of duty known as Anti-Dumping Duty. Section 9A(2) contemplates higher provisional duty being reduced on final fixation and refund becoming payable in such contingency. That specific provision contained in Section 9A(2) is not at all varied or changed by the provisions contained in Section 27 of the Customs Act. A special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. In the instant case, the difference between Rs. 1700 PMT and Rs. 1253 PMT, should have been returned within a reasonable time from 18-1-1994. This having not been done, learned Representative appearing on behalf of the importer prayed for payment of interest on the money illegally retained by the Government for more than 7 years. This claim put forth by the importer appears to be quite reasonable. As per provisions contained in Section 9A of Customs Tariff Act, Central Government had no right to retain the excess amount collected by way of anti dumping duty on the basis of the provisional notification. In terms of the final notification, the excess amount collected earlier should have been returned. After the issue of the final notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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