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TMI Blog2022 (8) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court challenging the insistence of Respondent No.4, The Commissioner of Customs (Nhava-Sheva) for payment of anti-dumping duty on import of unclad/non-clad aluminium foil from China PR. 3. Respondent No.5, the Directorate General of Trade Remedies (DGTR) had initiated an investigation vide Notification dated 15th December, 2015 with respect to levy of anti-dumping duty on import of aluminium foil from China PR on a Petition filed by the domestic industry. During the investigation, various exporters as well as importers represented their case before Respondent No.5, so also Petitioner as an interested party. It was specifically requested by Petitioner to exclude clad as well as unclad or non-clad aluminium foils which are meant for use in automobile industry from the scope of the investigation because these goods were not produced or manufactured in India and hence, there will be no question of injury to the domestic industry. Based on the representations, domestic industry agreed to exclude both clad as well as unclad/non-clad aluminium foils from the purview of the investigation itself since the said imported goods were not manufactured in India. As stated in the Petition, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... num foils, however, were subjected to levy of antidumping duty by Respondent No.4 on the ground that exclusion (vii) quoted above was only limited to clad aluminium foil, even though, both clad as well as unclad/non-clad aluminium foil were excluded from the scope of the investigation from Respondent No.5. Petitioner's representation and explanation that both clad as well as unclad/non-clad aluminium foil were expressly excluded from the scope of the investigation and final findings of Respondent No.5 at the request of the domestic industry itself as there was no injury caused to the domestic market went unheeded. This is despite a clarification issued by Respondent No.5 by a letter dated 1st February, 2018 in effect confirming the stand of Petitioner. Paragraphs 4, 5, 6 and 7 of the said letter dated 1st February, 2018 reads as under :- "4. In the aforesaid final findings read with the customs notification, eight (8) exclusions have been granted from the product scope. The exclusion (vii) as given in the aforesaid notification is worded as follows :- Clad with compatible non clad Aluminium Foil : Clad with compatible non clad Aluminium Foil is a corrosion-resistant aluminium s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the Petition has been served more than a year ago and time was granted on 11th February, 2021 to file reply by 31st March, 2021. 8. Considering the nature of the dispute, with the consent of the parties, we decided to dispose this Petition at this stage itself. 9. Section 9(A) of the Customs Tariff Act, 1975 provides for antidumping duty on dumped articles. Section 9(B) of the Customs Tariff Act, 1975 provides for situations where no levy under Section 9(A) can be imposed. Section 9(B) reads as under :- "9B. No levy under section 9 or section 9A in certain cases (1) Notwithstanding anything contained in section 9 or section 9A, - (a) no article shall be subjected to both countervailing duty and anti-dumping duty to compensate for the same situation of dumping or export subsidization; (b) the Central Government shall not levy any countervailing duty or anti-dumping duty - (i) under section 9 or section 9A by reasons of exemption of such articles from duties or taxes borne by the like article when meant for consumption in the country of origin or exportation or by reasons of refund of such duties or taxes; (ii) under sub-section (1) of each of these sections, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters connected with such investigation." 10. The portion which is relevant to the Petition at hand is Subclause (iii) of Clause (b) of Sub-section (1) of Section 9(B). This provides that the Central Government shall not levy any anti-dumping duty under Sub-section (2) of Section 9(A) on import into India of any article from the specified countries unless in accordance with the rules made under Sub-section (2) of Section 9(A), a preliminary finding has been made of subsidy or dumping and consequent injury to domestic industry, and a further determination has also been made that a duty is necessary to prevent injury being caused during the investigation. As could be seen from the averments in the Petition as well as the Rules, the finding has to be given by the Directorate General of Anti-Dumping and Allied Duties in the Department of Commerce, Ministry of Commerce and Industry, Government of India. In such a preliminary finding to be made, before anti-dumping duty is levied by the Government of India the following preconditions have to be met :- (a) it has to be an import into India; (b) of an article from a specified country; (c) there has to be a preliminary finding of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more so, when the same product is allowed to be imported from other ports without insisting on payment of levy of anti-dumping duty. 14. In view of the above, we allow the Petition in terms of prayer clauses (a1) and (e) and the same read as under :- "(a1) that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India declaring that levy and collection of ADD on unclad or non-clad aluminium foils for automobile industry imported from China PR in terms of Notification No.23/2017-Cus.(ADD) dated 16.05.2017, is incorrect and contrary to Section 9A read with 9B(b)(iii) of the Customs Tariff Act, 1975 and read with paragraph(s) 9(ii)(c), 12, 31, 79 and 136(xlix) of Final Findings dated 10.03.17. (e) that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondents by themselves, their officers, subordinates, servants and agents to forthwith grant refund of Antidumping Duty paid by the Petitioner under protes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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