TMI Blog2023 (9) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... o be done before such suppression . This exact expression has been examined by Hon ble High Court of Madras in case of VETCARE ORGANIC PVT. LTD. VERSUS CESTAT, CHENNAI [ 2011 (4) TMI 521 - MADRAS HIGH COURT] , wherein it was held that we allow writ Petition No. 21504 of 2001 and declare that Notification No. 5/2001-Cus., dated 22-1-2001, issued by the first respondent, in so far as it purports to save things done or omitted to be done before such rescission, is ultra vires Sections 9A, 9AA, 9B and 10 of the Customs Tariff Act, 1975, Article 265 of the Constitution of India and Rules 13, 17, 18(4) and 21(3) of the Customs Tariff (Identification Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recommendation of DGAD was implemented by the Ministry of Finance vide Notification No. 14/2012-Customs dated 29.02.2012, by revoking the anti-dumping duty. 2.1 The appellant filed a refund claim on the ground that they had paid antidumping duty in excess of the actual dumping margin determined for such article. The refund claim was in respect of imports made during April 2010 to February 2012. The Learned Counsel argued that DGAD has come to the conclusion that there was lower dumping margin and negative injury and therefore the anti-dumping duty paid by them during this period was refundable to them. 2.2 Learned Counsel pointed out that the impugned order seeks to deny the benefit of refund on the ground that Notification No. 14/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to reserve the authority to touch cases, which were omitted to be brought under levy as violative of the provisions of antidumping laws as well as Article 265 of the Constitution of India. Once on factual findings, the Government found that there was no dumping of materials from the People's Republic of China in the local market and hence, the anti-dumping laws could not be invoked, the question of preserving any authority to impose duty under the anti-dumping laws, does not arise. 13. A reading of Rule 18 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury), Rules 1995 (hereinafter referred to as the Rules ) shows that once the Designated Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f either maintaining a levy or imposing a fresh one, does not arise. In other words, the question of assuming jurisdiction in such would be contrary to not only the provisions of the Act, but would also be in violation of the Constitutional mandate. Thus going by the above-said provisions, it is clear that the latter portion of the Notification, preserving the rights of the Government in respect of the duty imposed or to impose duty in cases where it was omitted to be done before the rescission of the earlier notification under Notification No. 5/2001 dated 22-1-2001, is contrary to the Scheme of the Anti- dumping laws and violative of Articles 14 and 265 of the Constitution of India. 15. At this juncture, we feel, it would be appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplated under the provisions of Anti-dumping laws, not only to preserve the action taken to levy duty, but also to preserve the authority to take action in cases where there was an omission to impose duty. As already pointed out, such reservation of authority goes against the very scheme of the Anti dumping laws. In the circumstances, we have no hesitation in agreeing with the learned Senior Counsel appearing for the appellant that the levy, as such, cannot be made in the light of the findings given in Notification No. 5/2001 dated 22-1-2001. 17. In the light of the decision thus arrived at, we do not think that it is necessary for us to consider the other issues raised, particularly with reference to the compliance of the actual use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Notification, we allow writ Petition No. 21504 of 2001 and declare that Notification No. 5/2001-Cus., dated 22-1-2001, issued by the first respondent, in so far as it purports to save things done or omitted to be done before such rescission, is ultra vires Sections 9A, 9AA, 9B and 10 of the Customs Tariff Act, 1975, Article 265 of the Constitution of India and Rules 13, 17, 18(4) and 21(3) of the Customs Tariff (Identification Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, in so far as the petitioner is concerned. 5. In view of above the impugned order cannot be sustained. The impugned order is set aside and appeal is allowed. ( Pronounced in the open Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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