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2015 (9) TMI 1017 - BOMBAY HIGH COURT

2015 (9) TMI 1017 - BOMBAY HIGH COURT - 2015 (323) E.L.T. 452 (Bom.) - Levy of Anti Dumping Duty - petitioner seeks a declaration that Note 3 of the Notification No.125/2010¬Cus. dated 16.12.2010 is ultra vires to the Customs Act,1962 and the Customs Tariff Act - Held that:- The petitioner is primarily raising the issue of construction and interpretation of the Notes and the Notification as a whole.The petitioner has placed their version and interpretation on the Notification and the Notes below .....

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is a matter which involves the acceptance or otherwise version or interpretation of the petitioner and in relation to the duty, its levy, imposition and the cases in which same cannot be levied, imposed and recovered. - it is not necessary to express any opinion on the rival contentions. More so, when Mr. Jetly, on instructions, assures that the Authority adjudicating the show cause notice will pass an order by application of independent mind, uninfluenced by the version placed in the affidavit .....

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of India, the petitioner is seeking a declaration that Note 3 of the Notification No.125/2010­Cus. dated 16.12.2010 is ultra vires to the Customs Act,1962 and the Customs Tariff Act. The petitioner is also seeking to quash and set aside this Note and thereafter a Writ of Mandamus directing the respondents not to give effect to this Note and impose duty on SDH part imported as parts of non­SDH transmission equipments. 2. The issue raised in this petition is of Anti Dumping Duty. 3. It is .....

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Writ Petition arises in the backdrop of anti­dumping measures evolved by the State from time to time. The dumping of goods in India has been termed as counter productive and affects the Indian economy vitally. It causes material injury to the domestic industries and that is how in terms of Section 9A of the Customs Tariff Act read with Anti Dumping Rules, the second respondent investigates the cases of dumping of goods in India unlawfully and illegally and seeks to recover anti­dumping .....

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f the proceedings before respondent no.2, he had proposed this anti­dumping duty and to be imposed on the components or parts imported on a stand alone basis and the parts and components used in SDH equipments having multiple usages and not having dedicated usage in SDH alone, etc. Based on the same, the impugned Notification dated 16.12.2010 was issued by Union of India. A copy of this Notification is at 'Annexure A' at page 25 to the Writ Petition. That recites as to how the Notifi .....

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aid final findings of the designated authority, hereby imposes on the subject goods, the description of which is specified in column (3) of the Table below, falling under sub­heading of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), originating in the country as specified in the corresponding entry in column (4), and produced by the producers as specified in the corresponding entry in column (6), when exported from the country as spec .....

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(8) (9) 1 851762 Or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR China PR M/S Fibre-home Telecommunication Technologies Ltd. M/S Fibre-home Telecommunication Technologies Ltd. 266% % of CIF Value of Imports 2 851762 Or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR China PR Alcatel-Lucent Shanghai Bell Co. Ltd. Alcatel-Lucent Shanghai Bell Co. Ltd. 45% % of CIF Value of Imports 3 851762 or 8 .....

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China PR China PR Any other combination other than as at Sl. 1,2,3 and 4 above Any 266% % of CIF Value of Imports 6 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR Any other than China PR Any Any 266% % of CIF Value of Imports 7 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. Any China PR Any Any 266% % of CIF Value of Imports 8 851762 or 851770 Synchronous Digital Hierarchy Transmiss .....

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% of CIF Value of Imports 11 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. Any other than China PR Israel Any Any 70% % of CIF Value of Imports Note 1.­ The product under consideration will include Synchronous Digital Hierarchy (SDH) transmission equipment, viz. STM­1, STM­ 4, STM­16, STM­64, STM­256 in assembled, CKD, SKD form, its assemblies and sub­assemblies or fitted with eventual broadband or cellular equipme .....

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r SDH, which is an integral part of these equipments, which may be bought either as a part of the equipment or separately but the components or parts imported on a standalone basis are outside the purview of Product under Consideration Note 2. SDH Equipment essentially transmits signals through the medium of Optical Fibre.There may be SDH equipment meant for transmission through electrical Copper Medium or Microwave Radio Medium.The SDH Equipment transmitting the data through optical fibre alone .....

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, BSC, MSC, ONT, HLR, HSS and MRP being non­SDH in any of its form are outside the scope of product under consideration and therefore not subject to levy of anti­dumping duty. Note 5. Microwaves Radio Terminals which could have an STM­1 interface to the SDH transmission equipment and act as a physical media to enable the connectivity between the radio and the SDH equipment are outside the purview of payment of anti­dumping duty. 2. The anti­dumping duty imposed shall be levie .....

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specified in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), issued from time to time, in exercise of the powers conferred by section 14 of the Customs Act, 1962, (52 of 1962), and the relevant date for the determination of the rate of exchange shall be the date of presentation of the bill of entry under section 46 of the said Customs Act. It is urged before us that the petitioner had challenged the levy of anti­dumping duty during the course .....

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r reiterates is that nothing new had emerged from this exercise. 5. In the meanwhile, the Directorate of Revenue Intelligence (DRI) commenced investigation and the petitioner in paragraphs 13 to 15 of the petition has narrated the outcome of the same. The Writ Petition has been amended by introducing paragraph 15A and stating that after the present petition was served, the DRI, Mumbai has issued a Show Cause cum Demand Notice dated 18.12.2014. That is in terms of Section 124 read with Section 28 .....

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nd the matter is pending. 6. However, this petition is pressed on the ground that it raises the issue of the Note and particularly indicated in the petition as being ultra vires the Customs Act,1962 and the Customs Tariff Act. It being unconstitutional, void and of no legal effect, such a relief cannot be claimed before any forum, save and except this Court and by way of the present Writ Petition. 7. It is argued that anti­dumping duty can be imposed in India under the provisions of Section .....

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#39;like article' imported from a specified country. No antidumping duty recovery proceedings can be brought qua a product not manufactured by the domestic industry. The import of the 'like article' from the specified country must be dumped namely sold in that country at a higher price than the sale price in India. There must be material injury to the domestic industry and that such duty cannot be levied and imposed in respect of any item that the Indian complainant industry itself i .....

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no injury caused. The petitioner is sought to be proceeded against, though it is manufacturing only SDH equipment (configuration of which is mentioned specifically in the petition.). Note 3 as it is interpreted by the Revenue, operates in a different area and field and entirely different equipments and products in respect of which there is no grievance made by any Indian manufacturer and in respect of which there is no anti­dumping duty liable to be imposed. That equipment and product cannot .....

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tradicts or creates contradiction within the Note and with other Notes below the Notification and reproduced above. A specific contention is that if the components or parts of SDH imported are on standalone basis, they are outside the purview of the product under consideration.It is submitted that if such components and parts of SDH are imported as parts of a product which is not subject to antidumping duty, such components or parts of SDH cannot be brought to suffer any anti­dumping duty.Th .....

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omponents or parts of SDH imported on standalone basis. Then, the components or parts of SDH should not be suffered antidumping duty. However, without the pre­condition being satisfied, the Note is being incorporated by the Revenue to the detriment of the petitioner's interest, is the submission. It is, then, urged that even if the petitioner was to raise such contentions before the Adjudicating Authority and in further proceedings before the Tribunal, each one of them is a creature of t .....

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cated as to how the petition is misconceived. The petitioner does not wish to appear before the Adjudicating Authority and answer and reply the allegations in the show cause notice by facing the adjudication itself. The petitioner wants to short­circuit it and when it is aware that in the earlier round before the Tribunal it had raised similar contentions. The Tribunal accepted them and, then, remanded the case for denovo consideration. Thereafter an order has been passed. However, no steps .....

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ation does not suffer from any of these vices. Reliance is placed by Mr. Jetly on the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules,1995. He submits that neither validity of these Rules nor the power to impose an Anti­Dumping duty has been challenged. It is only the Notification and that too Note below the same which is challenged. In any event, it is nothing but an inte .....

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ition and all the annexures thereto, so also the affidavit in reply, we are of the opinion that presently it is not necessary to consider the larger question or wider issue of vires of the Note and below the impugned Notification. 12. From a reading of the petition, the grounds therein and equally considering the oral arguments on behalf of the petitioner summarized in the brief note handed in, we are of the opinion that the matter at this stage is more of interpretation of the subject Notificat .....

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ly, the equipment as a whole comprises of several parts and components and has to be viewed accordingly. If the components and parts themselves are imported on standalone basis, then, the same are out of the purview of this duty, is equally its interpretation. This is a matter which involves the acceptance or otherwise version or interpretation of the petitioner and in relation to the duty, its levy, imposition and the cases in which same cannot be levied, imposed and recovered. That is how the .....

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