2019 (4) TMI 949 - HC - Customs

Extension of ADD - imports of soda ash - clearances made after 02.07.2018 without any authority of law through Customs Notification 33/2017-Customs (ADD) dated 30.06.2017 issued under Section 9A(5) extending duty imposed under Customs Notification 34/2012-Customs (ADD) dated 03.07.2012 - HELD THAT - The original imposition in the present case was by way of the Notification dated 03.07.2012 and was valid till 02.07.2017. The levy was extended in the exercise of power under second proviso to Section 9A(5) of the Act through Customs Notification 33/2017 dated 30.06.2017 by a year till 02.07.2018. No notification extending duties can now be issued in terms of the settled law. No notification with retrospective or prospective effect can now be issued by the Respondent herein even if the sunset review is decided in favour of the applicant domestic producers in terms of the settled legal position that there cannot be a gap between expiry of original duties or extension of one year thereof under second proviso to Section 9A(5) and extension of period of such imposition by 5 years under first proviso to Section 9A(5) of the Customs Tariff Act, 1975. The respondents are hereby restrained and enjoined from collecting any duties under Notification No. 34/2012 Customs (ADD) dated 03.07.2012 read with subsequent Notification No.33/2017 Customs (ADD) dated 03.06.2017, on or after 02.07.2018. Any amounts collected or obligations imposed on the basis of those notifications are declared to be without authority of law - petition allowed.

Summary

Issues:
1. Validity of levying anti-dumping duty beyond expiry date of original notification.
2. Interpretation of provisions under Section 9A of the Customs Tariff Act, 1975.
3. Authority to issue notifications extending duties.
4. Legal implications of sunset review on anti-dumping duty imposition.

Analysis:
Issue 1:
The petitioner, a firm importing soda ash, challenged the imposition of anti-dumping duty beyond the expiry date of the original notification. The court noted that the duty was extended through a notification until 02.07.2018. Despite this, the respondent sought to levy duty post this date. The court held that no fresh levy can be imposed after the expiry date of the original notification, as per established legal principles.

Issue 2:
The court examined the provisions of Section 9A of the Customs Tariff Act, 1975, which allow for the continuation of anti-dumping duty pending the outcome of a sunset review. It emphasized that for such continuation, specific conditions must be met, including the initiation of the sunset review before the expiry of the original levy period and the absence of breaks in the duty's continuity. The court held that the levy cannot be revived if there is a break in its continuance, emphasizing the need for fresh notifications to extend duties.

Issue 3:
The court discussed the authority to issue notifications extending duties, emphasizing that the law does not permit the issuance of retrospective or prospective notifications once the original duty has expired. It highlighted that any duty collection beyond the expiry date of the original notification is without authority of law. The court restrained the respondents from collecting any duties under the expired notifications and declared any amounts collected post the expiry date to be unauthorized.

Issue 4:
The judgment also addressed the legal implications of the sunset review on anti-dumping duty imposition. It clarified that there cannot be a gap between the expiry of the original duties or their extension for one year and the extension of the duty for a further five years. The court held that the petitioner is entitled to a refund of any amounts collected after the expiry date of the original notification. The writ petition was allowed in favor of the petitioner, discharging them from any obligations imposed post the expiry date.

In conclusion, the court's judgment focused on upholding the legal principles governing the imposition and extension of anti-dumping duties, ensuring that duties are levied in accordance with the law and established procedures.