TMI Blog2009 (9) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... 439753 15000 Pcs. 13-11-2002 PL Tube 9W 11W Yixing Yuanhong Import Export Co. Ltd. China 3. 440707 70000 Pcs. 15-11-2002 CFL2U-7W Xiamen C D Inc. China 2. As per Notification No. 128/2001 dated 21-12-2001, issued and effective upto and inclusive of the 20th day of June, 2002, provisional anti-dumping duty was imposed on CFL with or without choke originating in or exported from China or from Hong Kong to India. The appellants cleared the impugned goods provisionally pending determination of the definitive anti-dumping duty. When a final notification was issued vide Notification No. 138/2002 dated 10-12-2002 making the levy effective from 21-12-2001, the department demanded anti-dumping duty to the aforesaid extent. 3. When the appellant did not attend personal hearings fixed by the department, the original authority issued Orders-in-Original confirming the demand as aforesaid. Without paying the anti-dumping duty demanded by order of adjudication, the appellant filed an appeal. The appellate authority below passed an interim order dated 16-9-2004 directing the appellants to make predeposit of the duty and intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab initio void. There was no need for making provisional assessment at the time of import. (2) Section 9A(8) of the Customs Tariff Act has not referred to provisional assessment at the subject time. Hence, the provisional assessment cannot be taken as legally made. (3) The bond executed was only for six months and it had expired. Department had not called the appellants to renew the bond and to extend the bond period. Hence no demand can be made in terms of the bond given. That non-extension of bond is not just a procedural lapse as contended by the department but a fatal lapse. (4) The expression in the bond : Otherwise the same shall remain in full force and virtue has to be read with the other clauses of the bond in a harmonious manner and when a cut off date is given in the bond, it means that this clause will operate only till the cut off date. (5) Demand under Section 28 of the Customs Act, 1962 will be hit by limitation as the same was not issued within 6 months from the date of payment of duty. (6) The stand of the department that the letter written to the appellants may be taken as a demand for duty is wrong and they cannot be a substitute for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive of 20-6-2002 in respect of the goods imported from the country of export mentioned in Notification No. 128/2001 and the said notification having been ceased to operate from the above date, the goods imported by the appellants after that date as per description herein before stated are not liable to anti-dumping duty. Similarly, learned counsel s contention is that Notification No. 138/2002-Cus., dated 10-12-2008 shall not have retrospective operation. Section 9A of the Customs Tariff Act, 1975 does not permit through its sub-section (1) and (5) to impose anti-dumping duty retrospectively. Sub-section (3) of the said Section does not permit to revive a notification that is Notification No. 128/2001 dated 21-12-2001 to survive in terms of Notification No. 138/2002-Cus. dated 10-12-2002. Learned Commissioner (Appeals) should not have relied on the decision of the Chhotu Lal Daga (supra). But he should have followed the decision in Gagan International Associates - 2008 (231) E.L.T. 293 (Tri. -Chennai.) since Section 18 of the Customs Act, 1962 (the Act) cannot be invoked at the relevant point of time. He further submitted that the authority below failed to appreciate the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in great length and we heard both sides patiently for quite a long time. Levy of anti-dumping duty is nothing new to this country since such levy has been introduced in terms of Section 9A of the Customs Tariff Act, 1975 in the year 1985. Object of the said section is to make dumped import of certain goods from certain countries costlier so as to discourage import thereof from those countries. This object is very clear from sub-section (1) of Section 9A of the Act. According to sub-section (2) of the said Section, Central Govt., is empowered to impose anti-dumping duty on the basis of provisional estimate of value of goods imported and margin, pending determination of the normal value and margin of dumping in relation to the subject goods. Legislature has thoughtfully given certain exception to 100% EOU in terms of sub-section (3). If the Central Govt., in respect of dumped article under inquiry is of opinion that : (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng reached by the designated authority which was published in the Gazette of 14-11-2001, following conclusion was drawn by that Authority: (a) CFL originating in or exported from People s Republic of China and Hong Kong have been exported to India below normal value, resulting in dumping; (b) The Indian industry has suffered material injury from exports of subject goods from People s Republic of China and Hong Kong; (c) The injury has been caused cumulatively by the dumped imports from People s Republic of China and Hong Kong. (d) In case of exports of CFL with choke by M/s. Philips and Yarning, People s Republic of China, causal link could not be established as the landed value of such exports was more than the non-injurious price, and has proposed to impose definitive anti-dumping duty, on all imports of CFL, except the exports of CFL, both with and without choke, by M/s. Philips Yarning, People s Republic of China, originating in, or exported from, People s Republic of China and Hong Kong. 16. In terms of the aforesaid finding made by the Designated Authority, Central Govt., imposed anti-dumping duty in respect of the goods as that .was imported by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te law that while interpreting the statute, the courts not only may take into consideration the purpose for which the same had been enacted, but also the mischief it seeks to suppress. Entire object of the scheme of anti-dumping duty being to prohibit dumping in order to protect domestic industries, such avowed object of the statute cannot be defeated by the plea of no retrospective levy permitted by law while manner of imposition of the levy under Section 9A of the Customs Tariff Act, 1975 is done following due process of law by inbuilt provisions of said section read with provisions of Customs Act, 1962. Revenue s reliance that mechanism of Section 28 of the Customs Act, 1962 is for recovery of the levy is well appreciable from the apex Court s decision in Virgo Steels (supra) which has been extracted by the learned Commissioner (Appeals) in page 8 of his order. 19. Learned counsel s submission that the anti-dumping duty matter has undergone several controversy is not appreciable for the reason that Nitco Tiles (supra) relied upon by the learned Commissioner (Appeals) has answered the controversy as to levy of anti-dumping duty during interregnum period. Following the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) in Section 9A of Customs Tariff Act, 1975 with effect from 1-1-1995, action taken against the appellant prior to the substitution of that sub-section shall be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if the amendment made in Section 9A had been in force at all material times. This intention of legislature is abundantly clear from Section 102 of the Finance (No. 2) Act, 2009. The said Section reads as under :- 102. Validation of certain actions taken under section 9A of Act 51 of 1975. - Any action taken or anything done or omitted to be done or purported to have been taken or done or omitted to be done under any rule, regulation, notification or order made or issued under the Customs Act, or any notification or order issued under such rule or regulation at any time during the period commencing on and from the 1st day of January, 1995 and ending with the day, the Finance (No. 2) bill, 2009 receives the assent of the President shall be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendment made in Section 9A of the Customs Tariff Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt nor the Indian Anti-Dumping Law provide for levy of provisional duty at zero rate. In fact, the levy of provisional duty ceases to operate on expiry of the provisional duty notification. Moreover, judicial discipline required the Mumbai Bench to refer the matter to a still Larger Bench if it disagreed with the Three Member Anti-Dumping Bench instead of rendering a contrary decision and in any case, such a contrary decision rendered by a smaller Bench cannot be a binding precedent for another Bench. We also cannot ignore the fact that such an interpretation contrary to the decision of the Larger Bench has serious implications for the economy of the country and health of the domestic industry. If it is held that during the interregnum which can be between 6-12 months depending when the anti-dumping investigation is completed, the domestic market of a country can be flooded with large-scale imports at dumped prices without having to face anti-dumping duty and this would seriously injure and cripple domestic industry. Obviously, this cannot be the purpose of the Anti-Dumping Law which is enacted purely to provide a trade remedy measure against unfair trade practices and dumped imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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