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TMI Blog2016 (12) TMI 1913X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent and quash the same and to forbear the respondents from awarding any Anti-Dumping Duty (ADD) on clearances by the petitioner of Populated Circuit Board Assemblies (PCBAs) from the Flextronics Special Economic Zone to the Domestic Tariff Area Unit of the petitioner, under Section 30 of the Special Economic Zones Act, 2005 read with Notification 125/2010-Cus, dated 16.12.2010 and Section 9A of the Customs Tariff Act, 1975. 3. The reason for approaching this Court by way of these writ petitions was because the respondents, in particular, the first respondent, the Development Commissioner, was attempting to levy ADD on the clearances made by the petitioner of PCBAs from the Flextronics Special Economic Zone (SEZ) unit to the Domestic Tariff Area Unit of the petitioner. 4. This Court heard the matter elaborately on various dates and it would be worthwhile to refer to certain interim directions issued, so that there will be a cogency of facts and the ultimate directions which this Court proposes to issue in these writ petitions. Therefore, the interim orders dated 02.09.2016 and 5.10.2016 are extracted below in seriatim. "Interim order deated 2.09.2016 Heard Mr.P.S.Raman, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the product under consideration for the levy of anti-dumping duty. Therefore the petitioner's endeavour is that they procure the products from M/s.Flextronics Technologies India Pvt. Ltd. which supplies PPCB'S to the petitioner which is situated in the Special Economic Zone under the control of the first respondent and what is being imported by M/s.Flextronics Technologies India Pvt. Ltd. are stand alone components which are used for the manufacture of PPCBAs. Therefore, it is submitted that this is not as if the PPCBAs or synchronous and transmission enquipment is being imported and sold to the petitioner and the even as per the clarification issued by the DGAD all components or parts imported on standalone basis would not attract Anti-Dumping Duty. 7.Futher it is pointed out that the appropriate authority to conduct Anti-Dumping Circumvention Investigation in India is the DGAD and they have not received any application for investigating circumvention of duties. 8. After hearing the arguments of the learned Counsel appearing for the parties, this court is of the prima facie of the view that the Development Commissioner could not Act as an appropriate Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit has been filed by the Development Commissioner, dated 14.11.2016, to which an affidavit in reply has been filed by the petitioner dated 17.11.2016 and a counter affidavit to the reply affidavit has been filed by the Development Commissioner, dated 28.11.2016. 6. After the above referred two affidavits have been filed and after hearing the learned Senior counsels for the petitioner, this Court passed the interim order dated 24.11.2016, which is to the following effect. Heard Mr.P.S.Raman, learned Senior counsel and Mr.Sathish Parasaran, learned Senior Counsel assisted by Mr.Karthik Sundaram, learned counsel appearing for the petitioner. 2.Pursuant to the order passed by this Court, dated 05.10.2016, an affidavit has been filed by the Assistant Commissioner gof Customs, Specified Officer (SEZ) in the office of the first respondent on behalf of the respondents. On a perusal of the affidavit, it is seen that the respondents are agreeable for the case files to be transferred to the jurisdictional Customs Commissioner to be decided on merits and certain other issues have been raised in the affidavit, to which an affidavit in reply has been filed by the petitioner. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Court in this matter. A further direction is sought for to direct the petitioner to continue to pay the ADD, as directed by this Court earlier in W.P.No.27873 of 2014, till the adjudication is completed. The affidavit closes in paragraph No.8 with the following prayer. "8. In view of the submissions above it is respectfully prayed that this Hon'ble Court may be pleased to i. Order transfer of all the case files to the jurisdictional Customs Commissioner hif the Hon'ble Court decides so; subject to the condition that the adjudication shall be on all aspects of the allegations in the notice on merit and not limited to any specific issue or limitations. Further, in case of transfer, the Hon'ble Court may specifically direct that the notice issued shall not be hit by any time bar provision. ii. the acceptance of the respondents shall not be construed as admittance by the respondents of lack of jurisdiction of the Development Commissioner and the Hon'ble Court may clearly specify in the order that the issue of jurisdiction of the Development Commissioner in such cases has not been decided. iii. may direct the petitioner to continue to pay the ADD as dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these writ petitions should also be made application to the show cause notice dated 28.10.2015 in File No.05/2014/SO-Part-II. 11. A counter to the reply affidavit has been filed, in which, the respondent/Development Commissioner contended that the decision of the Division Bench of this Court in M/s.Flextronics Technologies (India) Private Ltd., is not about the leviability of ADD on the goods cleared from a SEZ, but it is about "Whether the Antidumping Duty paid by the DTA importer for the goods imported from SEZ formed part of the sale price of the goods manufactured and sold for the purpose of payment of VAT". 12. Apart from the above contentions, several other contentions have been raised in reply to the stand taken by the petitioner in their affidavit. 13. In the light of the stand taken in the affidavit filed by the Development Commissioner, agreeing for transfer of the files to the jurisdictional Customs Officer, this Court does not propose to examine the factual or legal contentions put forth on either side and they have been set out in the preceding paragraph with a view to keep the jurisdictional Customs Officer informed about the contentions raised by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... canvassed, have been set out in the preceding paragraph to give a broad over view of the contentions of the parties and it is the jurisdictional Customs Officer who has to adjudicate the show cause notices as would be regularly done by him in other cases. 17. Pursuant to the interim orders granted by this Court in W.P.No.27873 of 2014, it is submitted that the petitioner has so far paid a sum of Rs.33 Crores as Anti Dumping Duty for the clearances effected by them from the Flextronics Special Economic Zone to their Domestic Tariff Area Unit. Since the show cause notices have been directed to be adjudicated by the jurisdictional Customs Officer, these payments effected by the petitioner, pursuant to interim orders passed by this Court, in the said writ petition, shall abide by the final orders of adjudication to be passed by the jurisdictional Customs Officer. 18. Since the Revenue implication appears to be large and the learned Additional Solicitor General requests some protection for the Revenue, this Court is of the view that the jurisdictional Customs Officer shall endeavour to complete the adjudication as expeditiously as possible, preferably within a period of two months fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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