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TMI Blog2024 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... mount equivalent to the rate indicated in the Notification (in Dollar terms) converted into Indian currency with reference to the rate of exchange in force as on date on which the bill of entry is presented under Section 46 of the Customs Act. [3] The petitioner is a private limited company wholly registered under the provisions of the Companies Act, 1956 and is engaged in the business of importing Low Ash Metallurgical Code (Metcoke) for the purpose of trade. The Metcoke is classified under Heading 27.04 of the Schedule of the Act and are subject to basic customs duty at 15% ad valorem and auxiliary duty at the rate of 10% ad valorem. Metcoke is an important output for a number of industries including foundries, soda ash etc. There is a continuous requirement for importing Metcoke because the capacity of manufacturing Metcoke in India is limited to an installed capacity of only about 4 Lac Metric Tonne, which is not sufficient to meet the demand of over 2 Million Tonne. [4] The Central Government, by Notification No. 2/95-Customs (N.T.) dated 1st January 1995, made the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) That anti-dumping duty was leviable on all imports of LAMC from China irrespective of the Ash content being the difference between Rs. 4673 and the landed price of the imports per Metric Tonne. [12] The Designated Authority, thereafter, issued a corrigendum on 2nd September 1998, which modified the amount of antidumping duty as equal to the difference between Rs. 4673 and the landed price of import subject to minimum of anti-dumping duty of Rs. 692 per Metric Tonne. [13] The Central Government implemented the recommendations of the Designated Authority by issuing Notification No. 81/98-Cus dated 27th October 1998 introducing a minimum amount of antidumping duty. [14] Being aggrieved by the Notification No. 81/1998, the appeal was filed by the aggrieved party against the final findings of the Designated Authority before the Customs, Excise and Gold (Control) Appellate Tribunal (for short, "the CEGAT") around February 1999. It was disposed of by CEGAT vide final order dated 21st January 2000 upholding the order of the Designated Authority. However, the CEGAT modified the quantum and computation of anti-dumping duty, as provided in the final findings, to levy of fixed duty in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, (hereinafter referred to as "the Rules), issued in exercise of powers conferred by sub-section (6) of section 9(A) and Sub-section (2) of section 9(B) of the Customs Tariff Act, 1975 and in supersession of earlier Rules issued in 1985. Procedure has been prescribed that there should be initiation of investigation under Rule 5. Guidelines are provided in rule 6 which is known as principles governing the investigation. Some confidential information can be taken into consideration as provided in rule 7. Accuracy of information and the territory of other specified countries are also required to be taken into consideration depending upon the facts as provided in rules 8 and 9. There must be determination of normal value, export price and margin of dumping and determination of injury. On the basis of this, there must be a preliminary finding in view of rule 12 and there may be provisional duty in rule 13. After the termination of investigation, final finding as per rule 17 is to be arrived at and the designated authority has to submit the same to the Central Government and it is thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of power conferred under section 9(C) of the Act, the government has taken into consideration the decision and has issued a notification. We are afraid that in view of the Apex Court judgment, this argument cannot be accepted as in clear terms it is pointed out that the order of the designated authority is purely recommendatory and appeal would lie against the determination which has been made by the Central Government. In the instant case, there was no determination by the Central Government. Prima facie, we are of the view that as the judgment of the Tribunal has not been confirmed, no reliance could have been placed for the purpose of issuance of notification. It is for the Central Government to accept the recommendation made by the designated authority. That authority submitted its recommendation and the government issued a notification on 27.10.98. 4. Mr. Mihir Joshi, learned advocate, appearing for the petitioner submitted that the order of the CEGAT cannot be considered as recommendatory, more particularly when the Apex Court has held that the appeal was not competent before the CEGAT. 5. In view of the aforesaid discussion, we stay the subsequent notification and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the order of the CEGAT would itself be recommendatory under the scheme of the anti-duping duty, until the acceptance thereof by the Central Government. [25] During the pendency of this petition, the petitioner came to know that during the period from the Notification of the Central Government dated 27th October 1998 and the impugned Notification dated 18th May 2000 and the impugned Notification dated 19th May 2000 implementing the order of the CEGAT, a meeting was held between the Secretary (Steel), Government of India and the representatives of Mini-Blast furnace producers of Metcoke on 25th November 1999, is permissible in law, wherein an agreement is purported to have been arrived at between the representatives of the domestic industries and consumers of Chinese Metcoke, wherein in-effect, Metcoke Manufacturers Association withdrew their demand of levy of anti-dumping duty on Metcoke imported by blast furnace industry in view of the decision of the Hon'ble Supreme Court in the case of Jaswal Neco Ltd. vs. Commissioner of Customs, Visakhapatnam reported in 2015 (17) SCC 769. [26] Learned Senior Advocate Mr. Mihir Joshi with learned advocate Mr. Anuj Trivedi for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Pig Iron manufacturers from levy of anti-dumping duty without a fresh investigation or at least providing an opportunity of hearing to the concerned parties in view of the peculiar facts and circumstances of the case, wherein a substantial grievance raised before the Designated Authority was withdrawn at a subsequent stage. [30] It was submitted that the exclusion from the levy of antidumping duty upon users of Metcoke in the manner provided in the Notification amounts to a discriminatory levy of anti-dumping duty on imports of Chinese Metcoke into India and is violative of Rule 19 of the Rules, which mandates imposition of duty on non-discriminatory basis. [31] It was submitted that incorporation of the agreement between the domestic industry and some of the parties to the investigation in the determination by the Central Government vide the impugned Notification substantially modifies the final findings and the order of the CEGAT, without any challenge to the same, is not permissible under the scheme of the relevant Act and the Rules. It was submitted that the Central Government does not have the power of granting exemption in respect of levy of anti-dumping duty as the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court in the case of C.C.E. & C., Surat-I vs. Ukai Pradesh Sahakari Khand Udyog Mandli Ltd. reported in (2011) 271 ELT 32. [39] Per contra, learned advocate Ms. Maithili Mehta for the respondent No. 1 and learned advocate Mr. Pratik Khubchandani for the respondents Nos. 2, 3 and 4 submitted that as per the provisions of Section 25(1) of the Customs Act, 1962, the Central Government has the power to grant exemption from duty. [40] It was submitted that as per sub-section (1) of Section 25 of the Customs Act, 1962, if the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. It was, therefore, submitted that the impugned Notification, granting exemption to the Pig Iron manufacturers from levy of anti-dumping duty, is within the power of the Central Government. [41] Reliance was placed on the decision of the Hon'ble Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-compliance of which would not affect the essence or substance of the Notification granting exemption. After considering the doctrine of substantial compliance and "intended use", the Hon'ble Supreme Court considered the decision in the case of Collector of Central Excise, Jaipur vs. J. K. Synthetics reported in (2000) 10 SCC 393 and the decision in the case of Thermax Private Ltd vs. Collector of Customs (Bombay), New Customs House reported in (1992) 4 SCC 440 and held that both these decisions cannot be applied in all facts situation and it is declared that the findings recorded in those decisions would be confined to the facts of the said cases, which arises out of the said cases only as the issue involved was whether the exemption from payment of the central excise duty was available to the populated Printed Circuit Board manufactured and cleared by the assessee under Notification No. 48/94-CE dated 1st March 1994. It was, therefore, held that there are mandatory requirements for claiming the exemption from duty and such mandatory requirements are required to be available to avail the benefit of exemption. [43] It was submitted that exemption granted to Pig Iron manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation. - For the purposes of this section, - (a) "margin of dumping", in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) "normal value", in relation to an article, means - (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of such absorption, from such date, not earlier than the date of initiation of the inquiry, as the Central Government may, by notification in the Official Gazette, specify. Explanation.-For the purposes of this sub-section, "absorption of anti-dumping duty" is said to have taken place, (a) if there is a decrease in the export price of an article without any commensurate change in the cost of production of such article or export price of such article to countries other than India or resale price in India of such article imported from the exporting country or territory; or (b) under such other circumstances as may be provided by rules.] (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such antidumping duty exceeds the margin as so determined:- (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, redu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. [Provided also that if the said duty is revoked temporarily, the period of such revocation shall not exceed one year at a time.] (6) The margin of dumping as referred to in sub-section (1) or sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 12 of the Customs Act, 1962, and any sum chargeable on that article under any law for the time being in force as an addition, and in the same manner as, a duty of customs, but not including the special additional duty referred to in sub-section (1); and (iii) the additional duty of customs chargeable on that article under section 3 of this Act." [47] The Designated Authority has recorded the final findings in the Notification dated 27th August 1998, which reads as under: "J. FINAL FINDINGS 80. The Authority in view of foregoing concludes that: - * Irrespective of the fact that the members of ICA can produce metcoke with less than 15% ash content, the Authority is inclined to agree with the exporters/ importers that only metcoke with ash content of 15% and below is a like article to the metcoke imported from China RP. * Based on the information available with the Authority at the time of initiation, the petitioner had the standing to file the petition on behalf of the domestic industry. The petitioner satisfied the criterion for standing at the time of preliminary findings, considering the scope of the "like article", as defined in the preliminary findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads as under: "Notification No. 5/2003-Customs 3rd January, 2003 In exercise of the powers conferred by the sub-section (1) of Section 9A rad with sub-section (6) of section 3 of the Customs Tariff Act, 1975 (51 of 1975) and sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, makes the following further amendment in the notification of the Government of India, in the erstwhile Ministry of Finance (Department of Revenue), No. 69/2000-Customs, dated the 19th May, 2000, namely:- In the said Notification, in paragraph seven, after the Table, for the words beginning with "Nothing contained in this notification" and ending with the word and figures "Rules, 1996", the following shall be substituted, namely:- "Nothing contained in this notification shall apply to imports of metcoke a) by a manufacturer of pig iron or steel using a blast furnace or b) by a manufacturer of steel using COREX technology or c) by a manufacturer of pig iron using COREX technology or d) by a manufacturer of ferro alloys If he follows the procedure set out in the Customs (Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entry is presented under section 46 of the said Customs Act, 1962 (52 of 1962) Sr. No. Name of exporter Rate per metric tonne (1) (2) (3) 1. China National Coal Industry Import/Export (Group) Corporation US $ 18.35 2. China National Mineral Import and Export Corporation US $ 24.51 3. Shanxi Coal Import Export Group Corporation (Minmetal Group) US $ 19.22 4. Ningxia Xiacheng Import & Export Corporation US $ 24.95 5. China North Industries Corporation US $ 22.69 6. Shanghai Pacific Chemicals (Group) Corporation Ltd. US $ 19.22 7. All other exporters US $ 24.95 Nothing contained in this notification shall apply to imports of metcoke by a manufacturer of pig iron or steel using a blast furnace if he follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Explanation:- For the purposes of this notification, the expression "rate of exchange" shall mean the rate of exchange notified by the Central Government under sub-clause (i) of clause (a) of sub-section( 3) of section 14 of the Customs Act, 1962 (52 of 1962). [51] It would, therefore, be necessary to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies ferrous and non-ferrous foundries, ferro alloys producers, soda ash producers, zinc smelting units some other chemical units and various SSI units. 6. Since the imposition of the anti-dumping duty the blast furnace units had to resort to import from expensive sources like Russia, Japan etc. In view of this it was suggested by the AIM that the blast furnace units could be exempted from paying ADD on import of metallurgical coke of Chinese origin, provided this import is for actual use by the blast furnace units. The list of blast furnace units which will be covered by this exemption is also enclosed. 7. Considering the financial difficulty of the members of AIM, IMCOM agreed that they have no objection if the government exempts the blast furnace industry from the purview of the anti-dumping duty. Metcoke will be imported under OGL with Actual user Conditions for blast furnace industry without ADD. IMCOM reiterated that while the continuation of the ADD on metcoke of Chinese origin is vital for the survival of the indigenous coke manufacturers they also agreed that the exemption of the blast furnace units from ADD was vital for their survival." 16. On reading these mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mping duty payable by the appellant prior to the Notification No. 69/2000 was confirmed and accordingly, the Hon'ble Apex Court, in the context of levy of interest, has held, by approving the decision of this Court in the case of Commissioner of Customs (Preventive) vs. Goyal Traders reported in (2014) 302 ELT 529, as under: "24. In Commissioner of Customs (Preventive) v. Goyal Traders, (2014) 302 ELT 529, the Gujarat High Court has held as under:- "17. In the present case, we find that prior to introduction of sub-section (3) of Section 18 of the Act in the present form, there was no liability to pay interest on difference between finally assessed duty and provisionally assessed duty upon payment of which the assessee may have cleared the goods. It was only with effect from 13.7.2006 that such charging provision was introduced in the statute. Upon introduction therefor such provision created interest liability for the first time w.e.f. 13.7.2006. In absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such a statutory provision, we are of the opinion that the same cannot be applied to cases of provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities cannot, for the purpose of collecting and enforcing payment of Central sales tax, charge interest thereon. 14. The requirement of the 1st respondent's sales tax authorities that the appellants should pay interest at the rate of 24% p.a. on delayed payment of Central sales tax under the provisions of Section 35(A) of the State Act must, therefore, be held to be bad in law." 26. Given the aforesaid, it is clear that no interest is chargeable on any of the customs duties that are payable on the facts of the present case." [54] In view of the above, the petitioner would not be liable to pay any interest on the amount of anti-dumping duty, which would be leviable as per the Notification No. 69/2000 dated 19th May 2000 till such levy was revoked by Notification No. 22/2004 with effect from 2004 without any interest. [55] This petition is, accordingly, disposed of. Rule is discharged to the aforesaid extent. No order as to costs. FURTHER ORDER At this stage, learned senior advocate Mr. Mihir Joshi submitted that the interim relief which is granted by this Court is operating till final disposal of this petition may be continued for 12 weeks. Considering the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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