TMI Blog2018 (7) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... Yarn". The Principal Notification No.51/2015-Cus(ADD) was issued on 21.10.2015 and the amendment to that notification was given vide Notification No.05/2016-Cus(ADD) on 22.02.2016. As per the Principles of Statutory Interpretation, it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation - Notification No.5 of 2016, dated 22.02.2016 being substitutive in nature is held to be retrospective. The respondent is directed to consider and sanction refund claim made by the petitioner as expeditiously as possible - petition allowed. - W.P.Nos.13656 & 13657 of 2017 - - - Dated:- 21-6-2018 - T. S. Sivagnanam, J. For the Petitioner : Mr.S.Murugappan For the Respondents : Mr.K.S.Ramasamy Senior Standing Counsel ORDER The petitioner has filed two writ petitions, viz., (i) W.P.No.13656 of 2017, wherein, the petitioner sought for issuance of Writ of Certiorarified Mandamus to quash the order-in-original dated 21.03.2017 by which, the petitioner's application for refund of anti-dumping duty paid was rejected; and (ii) in W.P.No.13657 of 2017, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mping duty on imports of subject goods from the subject countries. While issuing the said notification in the duty payable chart, chart in paragraph-266 of the notification, the customs tariff head was mentioned is as 5402. To be noted that in the preliminary finding and the final finding, customs tariff heading was mentioned as 5402 47. Whereas, the notification pursuant to the sunset review, the tariff heading was mentioned as 5402. Accordingly, the Central Government issued Notification No.51 of 2015, dated 21.10.2015, therein also, the Chapter Heading was mentioned as 5402. Thus, any goods imported, which is classifiable under Chapter Heading 5402 was liable for payment of anti-dumping duty. 2.5 The petitioner effected transaction during the said period and the petitioner's request to permit clearance of the goods without remittance of anti-dumping duty was not accepted and the bills of entry were assessed levying anti-dumping duty. The petitioner questioned the same by contending that they were importing high tenacity polyester yarn from China and anti-dumping duty is not applicable for the said product and requested for passing a speaking order. Pursuant to the said re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arn of Polyester (non textured and non POY) falling under the heading 5402 originating from Peoples Republic of China, Thailand and Vietnam. 6.2 In para 3 of the said sunset Review Notification, it is clearly mentioned that the product under consideration is classified under the category Manmade Filaments in Chapter 54 of the Customs Tariff Act and further under 5402 47 as per Customs classification. However, Customs classification is indicative only and is in no way binding on the scope of the present investigation. In the final findings notification dated 29.09.2009 under Part B-Product under consideration and like Articles, para 4 states that the product in commercial market parlance is generally known as Fully Drawn Yarn . The goods imported by the appellant were tested by the Textile Committee and was reported to be Fully Drawn Yarn of Polyester-high Tenacity Polyester Industrial Yarn . 6.3 Further, the Principal Notification No.51/2015-Cus(ADD) was issued on 21.10.2015 and the amendment to that notification was given vide Notification No.05/2016-Cus(ADD) on 22.02.2016. As per the Principles of Statutory Interpretation, it is a cardinal principle of construction that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court while deciding whether a statue is clarificatory or declaratory has to consider the the same by taking note of the above mentioned four factors. In the absence of retrospective operation having been expressly given the courts are entitled to construe the provision and answer the question whether the legislature had an intention to give the statute retrospective operation. 9.3 More or less an identical question came up for consideration before the High Court of Karnataka in Commissioner of Central Excise and Sales Tax Bangalore v. Fosroc Chemicals (India) Pvt. Limited reported in 2015(318) ELT 240 (Kar), the Court took note of the decision of the Hon'ble Supreme Court in Shanmarao V.Parulekar v. The District Magistrate, Thana, Bombay and others reported in AIR 1952 SC 324 which dealt with the scope of substitution of a provision by way of amendment held as under:- When a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words has been written into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by such substitution. Thus, notification dated 22.02.2016 in Notification No.51 of 2016-Cus(ADD) having substituted Entry 5402 47 in the notification dated 21.10.2015 bearing Notification No.51 of 2015, it would mean that the Entry in the Notification dated 21.10.2015 shall be 5402 47 for all purpose and it shall be so with effect from 21.10.2015. 11. The learned counsel for the Revenue vehemently contended that the product classification is indicative only and is in no way binding on the anti-dumping duty investigation. In the instant case, the question of considering this submission does not arise, in the light of the Notification No.5 of 2016, dated 22.02.2016, which clearly states that it is a notification issued in substitution of the earlier notification. Therefore, the proper of reading Notification No.51 of 2015, dated 21.10.2015 is to read the Entry as 5402 47. 12. Thus, for the above reasons it is held that the Notification No.5 of 2016, dated 22.02.2016 being substitutive in nature is held to be retrospective. 13. The learned counsel for the Revenue submitted that the writ petitions should not be entertained and the petitioner should be relegated to av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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