TMI Blog2019 (4) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... sition by 5 years under first proviso to Section 9A(5) of the Customs Tariff Act, 1975. The respondents are hereby restrained and enjoined from collecting any duties under Notification No. 34/2012 Customs (ADD) dated 03.07.2012 read with subsequent Notification No.33/2017 Customs (ADD) dated 03.06.2017, on or after 02.07.2018. Any amounts collected or obligations imposed on the basis of those notifications are declared to be without authority of law - petition allowed. - W.P.(C) 8848/2018, CM Nos.34010-11/2018 And 38147/2018 - - - Dated:- 6-2-2019 - MR. JUSTICE S. RAVINDRA BHAT And MR. JUSTICE PRATEEK JALAN Appellant: Mr. Balbir Singh Senior Advocate with Mr. Jitendra Singh, Mr. Akshay Soni, Ms. Monica Benjamin, Advocates Respondent: Mr. Ashim Sood, CGSC and Mr. Rhythm B., Advocate ORDER S. RAVINDRA BHAT, J. (ORAL) 1. The instant writ petition is filed by the Saint Gobain India Pvt. Ltd. (hereafter referred as petitioner ) seeking for mandamus directing the Revenue/ respondent who through its officers is seeking to levy anti-dumping duty for clearances made after 02.07.2018 without any authority of law through Customs Notification 33/2017-Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered the final findings vide proceedings F.No.7/5/2017- DGAD dated 14.12.2018 concluding that the continuation of anti-dumping duty is not warranted and accordingly, did not recommend the extension of the anti-dumping duty on import of soda ash from the respective countries. 5. The petitioner till 02.07.2018 was paying all duties of customs including anti-dumping duty on soda ash when imported from countries that were subject to duty viz. China, PR, EU, Kenya, Pakistan, Iran, Ukraine and USA. Duties were paid also for the warehoused consignments as and when they were cleared from the warehouse. However, despite the settled position of law, the Respondents sought to levy anti-dumping duty for clearances made after 02.07.2018. Vide letters dated 05.07.2018 and 20.08.2018, the petitioner brought to the notice of the Commissioner, ICD, PPG and the Deputy Commissioner, Hazira Port about the demand being made. 6. The petitioners vide its petition urged that the respondent cannot levy duties that have lapsed on 02.07.2018. It is undisputed that the original imposition was by way of Notification dated 03.07.2012 that was valid only till 02.07.2017. The said imposition was extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d because it has to be issued within the period of first five years or in the extended one-year period of Sunset Review in which the earlier existing duty has been extended. The first proviso of section 9A (5) of the Act stipulates that in a Sunset Review when the Central Government is of the opinion that cessation of such duty is likely to lead to continuation or recurrence of dumping or injury, it may extend the period of levy for a further period of five years. The degree of levy would be to the extent necessary to offset the injury. In other words, there would have to be a duty in existence for it to be extended. In the present case there was cessation of duty on 05.05.2013 and again on 05.05.2014, therefore, there was no duty on two dates which could have been extended. xxx xxx xxx 23 ........... The Rule cannot override the Act. The Act has fixed a period for completion of Sunset Review within one year from the date of expiry of the initial five-year levy and it is in this one-year period that the Government must form a view that the cessation of duty would lead to continuation or recurrence of dum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018. Even otherwise, as it is admitted by the respondents in the counter affidavit that the DGAD has already passed an order on 14.12.2018 holding that the continuation of anti-dumping duty is not warranted and thus, he is not recommending for the extension of the anti-dumping duty on import of subject matter from the subject countries. It is an admitted case of the respondents that as on date, no notification is in force empowering the collection of ADD. On the other hand, it is a matter of fact such power conferred on the authorities through issuance of relevant notification ceased to exist after 02.07.2018. Hence, I am of the view that there is no justification on the part of the respondents in seeking for any interim protection for releasing the goods without collecting the anti-dumping duty on the reason that the order passed by DGAD dated 14.12.2018 is an appealable order. Needless to say that the respondents cannot insist upon the petitioner to protect the interest of the Revenue towards the anti-dumping duty in the absence of any statutory right available as on today for levying collecting such duty. On the other hand, it is an admitted fact that such right has already ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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