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2017 (10) TMI 921 - HC - Customs


Issues Involved:
1. Maintainability of the Writ Petition against a show cause notice.
2. Validity of the levy of Anti-Dumping Duty (ADD) based on an amendment notification issued after the lapse of the principal notification.
3. Entitlement to a refund of ADD collected post the lapse of the principal notification.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition Against a Show Cause Notice:
The Court acknowledged that generally, a writ petition is not maintainable against a show cause notice. However, exceptions exist when the notice is without jurisdiction or in violation of settled legal principles. Given the Supreme Court's ruling in Kumho Petrochemicals Pvt. Ltd., the Court found this case to fall within such an exception, thus ruling in favor of the petitioner's maintainability of the writ petition.

2. Validity of the Levy of ADD Based on Amendment Notification:
The petitioner challenged the show cause notices dated 15.07.2017 and 28.10.2015, arguing that the amendment notification dated 05.01.2015 was issued after the lapse of the principal notification (No.125/2010 dated 16.12.2010), which expired on 07.12.2014. The Court referred to the Supreme Court's decision in Kumho Petrochemicals Pvt. Ltd., which held that ADD notifications are temporary and cannot be amended post-expiry. The Court concluded that the amendment notification dated 05.01.2015 was invalid, rendering any ADD demands based on it unsustainable. Consequently, the impugned show cause notices were set aside.

3. Entitlement to Refund of ADD Collected Post Lapse of Principal Notification:
The petitioner sought a refund of ADD collected from 08.12.2014 to 26.04.2016, post the lapse of Notification No.125/2010. The Court noted that the petitioner had already applied for a refund on 08.08.2017, and with the legal issue now settled in their favor, the petitioner was entitled to pursue this refund. The Court directed the petitioner to continue pursuing the refund application before the appropriate authority, which must decide in accordance with the law.

Judgment Summary:
- W.P.No.22770 of 2017: Allowed. The impugned show cause notice dated 15.07.2017, insofar as it relates to the levy of ADD for the period from 01.09.2015 to 07.12.2015, was set aside. The demand for ADD in the show cause notice dated 28.10.2015 for the period from 08.12.2014 to 26.04.2016 was also set aside. The petitioner was directed to cooperate with the adjudication process for other issues.
- W.P.No.22771 of 2017: Disposed of, granting liberty to the petitioner to pursue the refund application before the competent authority, which must decide expeditiously in accordance with the law.

Conclusion:
The Court ruled in favor of the petitioner on both issues regarding the maintainability of the writ petition and the invalidity of the ADD levy based on the amendment notification issued post the lapse of the principal notification. The petitioner was also given the liberty to pursue the refund of ADD collected during the disputed period.

 

 

 

 

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