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2022 (8) TMI 844 - HC - CustomsLevy of Anti-dumping duty - import of unclad/non-clad aluminium foil from China PR - exclusion in the Notification No.23/2017, Respondent No.4, the Commissioner of Customs, JNPT assessed all the imports of clad aluminium foil from China PR without payment of anti-dumping duty - no reply has been filed though the Petition has been served more than a year ago - HELD THAT:- The portion which is relevant to the Petition at hand is Subclause (iii) of Clause (b) of Sub-section (1) of Section 9(B). This provides that the Central Government shall not levy any anti-dumping duty under Sub-section (2) of Section 9(A) on import into India of any article from the specified countries unless in accordance with the rules made under Sub-section (2) of Section 9(A), a preliminary finding has been made of subsidy or dumping and consequent injury to domestic industry, and a further determination has also been made that a duty is necessary to prevent injury being caused during the investigation. As could be seen from the averments in the Petition as well as the Rules, the finding has to be given by the Directorate General of Anti-Dumping and Allied Duties in the Department of Commerce, Ministry of Commerce and Industry, Government of India. Subsequently, there is a clarification issued by the Directorate General of Anti-Dumping and Allied Duties on 1st February, 2018 which is quoted earlier. Therefore, it is quite clear that clad as well as clad with compatible non-clad or unclad aluminium foil has been excluded from anti-dumping duty. Respondent No.4 therefore was not justified in insisting on payment of anti-dumping duty for clearance of unclad or non-clad consignment of aluminium foil, more so, when the same product is allowed to be imported from other ports without insisting on payment of levy of anti-dumping duty. Thus, it is declared that levy and collection of ADD on unclad or non-clad aluminium foils for automobile industry imported from China PR in terms of Notification No.23/2017-Cus.(ADD) dated 16.05.2017, is incorrect and contrary to Section 9A read with 9B(b)(iii) of the Customs Tariff Act, 1975 and read with paragraph(s) 9(ii)(c), 12, 31, 79 and 136(xlix) of Final Findings dated 10.03.17 - it is directed that Respondents by themselves, their officers, subordinates, servants and agents to forthwith grant refund of Antidumping Duty paid by the Petitioner under protest on import of unclad/non-clad aluminium foil from China PR in terms of Notification No.23/2017–Cus. (ADD) dated 16.05.2017 during the period from August 2017 to December 2018. Respondent No.4 are directed to refund all amounts paid by Petitioner with applicable interest in accordance with law/return all bank guarantees - petition disposed off.
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