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2015 (11) TMI 1465 - GUJARAT HIGH COURT

2015 (11) TMI 1465 - GUJARAT HIGH COURT - 2016 (331) E.L.T. 396 (Guj.) - Levy of anti dumping duty - whether the respondents are justified in issuing demand notice seeking to recover anti-dumping duty on the sheet glass imported by the petitioner falling under CTH 70049099 - Held that:- designated authority in its final findings has below the table put a note stating that the subject goods were also being imported under other tariff headings as detailed thereunder and that the customs notificati .....

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o.70049099 are concerned, no notification under rules 18 and 20 of the rules has been issued levying definitive anti-dumping duty on such goods. It follows 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 t .....

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PECIAL 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. R. J. Oza, learned senior standing counsel waives service of notice of rule on behalf of the respondents No.2 to 4 and Ms. Maithili Mehta, learned standing counsel waives se .....

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of glass in sheets from China PR classified under Tariff Item 70049099 is without jurisdiction and without authority of law. 3. The facts stated briefly are that the petitioner company is engaged in the business of manufacturing quartz analog clocks and time pieces. The clock manufacturers require high clarity, non-coloured, non-tinted, non-opaque glass in sheets which falls under Tariff Item 70049099 of Chapter 70 of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to a .....

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r-alia, submitting that the glass imported by the petitioner was different from the window glass manufactured by the domestic manufacturers in India, and that the domestic manufacturers were not manufacturing glass required for wall clocks and hence, it was necessary to import such glass, etc. 4. The designated authority by way of final findings dated 19.12.2014 issued under rule 17 of the rules recommended imposition of anti-dumping duty at the rate of USD 63 per MT on the import of sheet glass .....

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t 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. .....

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eceived on the matter, all imports of glass sheets under Tariff Items 70031290, 70031990, 70033090, 70042099, 70049019, 70049099, 70052110, 70053090, 70091090, 70091010, 70099100, 70119090 would be allowed provisionally on bond of duty difference backed by 5% bank guarantee. The fourth respondent also asked the petitioner to get the Out of Charge order in respect of the goods imported vide Bill of Entry No.8601656 dated 16.3.2015 cancelled and to submit bond and bank guarantee in respect of the .....

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emand anti-dumping duty for such goods. It is in these circumstances, that the petitioner has filed the present petition seeking the reliefs noted hereinabove. 7. Mr. Mihir Joshi, Senior Advocate, learned counsel with Ms. Amrita Thakore, learned advocate for the petitioner invited the attention of the court to the provisions of rule 4 of the rules to point out that duties of the designated authority include to recommend to the Central Government the amount of antidumping duty equal to the margin .....

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and submit to the Central Government its final finding, recommending the amount of duty which, if levied, would remove the injury where applicable to the domestic industry after considering the principles laid down in the Annexure III to the rules. It was pointed out that under rule 18 of the rules, which 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 .....

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hority 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 being .....

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y on the goods bearing Tariff Item 70042011 or 70042019. It was pointed out that the note below the duty table in the final finding is clearly missing in the notification issued by the Central Government in exercise of powers under rules 18 and 20 of the rules. It was submitted that under the circumstances, it is not open for the respondents to collect anti-dumping duty in respect of items other than the Tariff Items specifically mentioned in the notification issued by the Central Government. It .....

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proposition that the designated authority under rule 3 of the rules, acts for and on behalf of the Government while carrying out the investigation to determine the existence, degree and effect of any alleged dumping. In that view of the matter, the findings of the designated authority with respect to such issues may not be open to question by the Central Government. However, in the opinion of the court this was not the same thing as to suggest that even the recommendations of designated authorit .....

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aw. 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 virtu .....

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d under other tariff headings including Tariff Item 70049099 and that the designated authority had also clarified that the customs classification is indicative only and is not binding on the scope of the investigation. It was submitted that, therefore, there was some ambiguity as regards whether the tariff items mentioned in the note below the duty table were also to be subjected to anti-dumping duty under the said notification. Hence, a clarification was sought from the office of the Chief Comm .....

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sheet glass and cleared them without payment of anti-dumping duty. It was submitted that it is in these circumstances that the demand notices have been issued to the respective importers. It was, accordingly, urged that in the notification dated 13.3.2015 there is an anomaly in the specified CTHs and definition of specified goods. Under the circumstances, with a view to safeguard the interest of the revenue as the Notification No.07/2015-Customs (ADD) dated 13.3.2015 is issued on the basis of fi .....

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, accordingly, urged that the petition being devoid of merits deserves to be dismissed. 9. In the backdrop of the facts and contention noted hereinabove, the short controversy that arises for consideration in the present case is as to whether the respondents are justified in issuing demand notice seeking to recover anti-dumping duty on the sheet glass imported by the petitioner falling under CTH 70049099. As noticed hereinabove, the designated authority has submitted its final findings pursuant .....

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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 .....

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ts of subject goods originating in or exported from China PR. DUTY TABLE Sl. No. Heading Descrip tion of goods Country of origin Country of export Produce r Export er Duty amount Unit Currency (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) 1 70042011 & 70042019 Sheet Glass China PR China PR Any Any 63 MT US$ Do Do Any China PR Any Any 63 MT US$ Do Do China PR Any Any Any 63 MT US$ * The subject goods are also being imported under other tariff headings such as 70031290, 70031990, 70033090, 70042099 .....

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efinitive anti-dumping duty on the subject goods, the description of which is specified in column 3 of the Table set out in the notification 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 .....

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f 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 respondents that they have sought clarification from the Central Government on the anomaly in the specified CTH and definition of specified goods as contained in the Notifica .....

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the said note in the notification dated 13.3.2015. Insofar as the notification dated 13.3.2015 is concerned, the definitive anti-dumping duty is imposed only on sheet glass bearing Tariff Item No.70042011 and 70042019. 11. Rule 20 of the rules provides for commencement of duty and lays down that the anti-dumping duty levied under rule 13 and rule 19 shall take effect from the date of its publication in the Official Gazette. Therefore, the respondents would derive a right to levy anti-dumping du .....

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