TMI Blog2015 (11) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... ows as a necessary corollary that in the absence of any anti-dumping duty being levied under rules 13 and 19 of the rules, the respondent authorities do not have any authority in law to demand or collect any anti-dumping duty in relation to the goods not covered by the notification. Under the circumstances, the impugned demand notice as well as the communication dated 30.3.2015 are without any authority of law and therefore, cannot be sustained. The very premise on which the respondents seek to recover anti-dumping in respect of sheet glass falling under Tariff Item 70049099 viz. to safeguard the interest of the revenue, is itself fallacious, having regard to the fact that anti-dumping duty is levied for the protection of domestic industry and not to safeguard the interest of the revenue. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 13496 of 2015 - - - Dated:- 4-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE PETITIONER : MR MIHIR JOSHI, SENIOR ADVOCATE with MS AMRITA M THAKORE, ADVOCATE FOR THE RESPONDENT : MR RJ OZA, ADVOCATE, MS MAITHILI MEHTA ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other tariff headings inclusive of 70049099 etc. However, the customs classification is indicative only and is not binding on the scope of this investigation. It appears that the Morbi Chamber of Commerce and Industry had made a representation dated 26.12.2014 to the first respondent Union of India requesting that the anti-dumping duty not be imposed on glass used by clock manufacturers. 5. In exercise of powers under section 9A of the Act read with rules 18 and 20 of the rules, the first respondent issued Notification No.07/2015-Customs (ADD) dated 13.3.2015, imposing definitive anti-dumping duty at the rate of USD 63 per MT on the import of goods falling under Tariff Items 70042011 and 70042019 of the First Schedule to the Act originating in or exported from China PR. 6. In March, 2015, the petitioner imported 50 MT of 4 mm thickness clear glass in sheets from China and filed Bill of Entry No.8601656 dated 16.3.2015 which was duly examined and assessed on 17.3.2015 under Tariff Item 70049099 and such goods were cleared for payment of customs duty as assessed. Subsequently, the petitioner received a letter dated 30.3.2015 from the fourth respondent with reference to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch provides for levy of duty, the Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation to India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. It was submitted that the expression employed in the rule is may and, therefore, it is within the discretion of the Central Government whether or not to accept the recommendation of the designated authority or to partly accept the same. The attention of the court was invited to the final finding recorded by the designated authority to point out that the designated authority had recommended anti-dumping duty to the extent mentioned in the duty table to be imposed by the Central Government on all imports of subject goods originating in or imported from China PR. It was pointed out that the goods specifically mentioned in the duty table are the goods falling under Tariff Items 70042011 and 70042019. The attention of the court was invited to the note below the table, which reveals thus:- The subject goods are also bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the petitioner on the basis of the Notification No.07/2015-Customs (ADD) dated 13.3.2015 is without authority of law. Referring to the affidavit-in-reply filed by the respondents, it was submitted that it is the case of the respondents that they have sought a clarification from the Central Government in respect of the leviability of anti-dumping duty on the imports of glass falling under CTH 70049099 and hence, the exercise has been undertaken by them. It was submitted that no clarification would assist the respondents in the absence of the anti- dumping duty being imposed by the Central Government by virtue of a notification issued under rule 18 read with rule 20 of the rules. It was, accordingly, urged that the petition deserves to be allowed by granting the reliefs as prayed in the petition. 8. Opposing the petition, Mr. R. J. Oza, Senior Advocate, learned senior standing counsel for the respondents invited the attention of the court to the note below the final findings recorded by the designated authority to submit that the subject goods referred to in the duty table were earlier being imported under other tariff headings including Tariff Item 70049099 and that the des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s final findings pursuant to the investigation initiated by it to the Central Government making the following recommendations:- RECOMMENDATIONS : 127. The Authority notes that the investigation was initiated and notified to all interested parties and adequate opportunity was given to the exporters, importers and other interested parties to provide information/submissions on all aspect of the investigations including dumping, injury and causal link in terms of the provisions laid down under the Antidumping Rules and having established positive dumping margin as well as material injury to the domestic injury caused by such dumped imports, the Authority is of the view that imposition of duty is required to offset dumping and injury, pending completion of the investigation. Further, the domestic industry has also represented that they continue to suffer injury on account of low value dumped imports from the subject country. Therefore, the Authority considers it necessary to recommend imposition of anti-dumping duty on imports of subject goods from the subject country in the form and manner described hereunder. 128. Having regard to the lesser duty rule followed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation falling under the tariff item of the First Schedule to the Customs Tariff Act. A perusal of the table indicates that definitive anti-dumping duty has been imposed on the goods being sheet glass bearing Tariff Item No.70042011 or 70042019. It may be noted that while in the final findings, the designated authority had made a note below the duty table stating that the subject goods were also imported under other tariff headings including CTH 70049099, such table does not find place in the notification issued by the Central Government. Under the circumstances, insofar as the notification dated 13.3.2015 is concerned, the definitive antidumping duty imposed by the said notification relates only to sheet glass bearing Tariff Item 70042011 or 70042019. However, the respondents by placing reliance upon the note below the duty table in the final findings of the designated authority, have issued the impugned demand notice as well as the communication dated 30.3.2015 calling upon the petitioner to get the earlier out of charge order cancelled and to submit the bond and bank guarantee of the appropriate amounts for provisional clearance of the consignment. It is the case of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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