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2017 (10) TMI 921 - HC - CustomsAnti Dumping Duty - issuance of a writ of mandamus - N/N. 125/2010 - Populated Circuit Board Assemblies (PCBAs) - clearances from Flextronics Special Economic Zone (FSEZ Unit) into Domestic Tariff Area (DTA Unit) - effect of amendment to Notification No.125 of 2010, which was brought about, by Notification dated 15.01.2015, after a lapse of first Notification, i.e., with effect from 07.12.2014 - extension of duty upon initiation of sunset review under second proviso to Section 9A(5) of Customs Tariff Act, 1975. Whether the Writ Petition is maintainable against a show cause notice? - Held that - there can be no quarrel over the said proposition, but the Courts have carved out certain exceptions to this Ruling. In the considered view of this Court, the case on hand would fall within one such exceptions, in the light of the law being settled by the Hon ble Supreme Court. Therefore, the first issue is answered in favor of the petitioner. Whether the impugned show cause notice, insofar it relates to the levy of ADD based on the amendment Notification, which was issued after the lapse of principal Notification is valid and proper? - Held that - the amendment Notification, dated 05.01.2015, having been issued after the lapse of principal Notification No.125 of 2010, dated 16.12.2010, the show cause notice is not sustainable - the demand of ADD during the period of review is not automatic, but, has to be imposed before the expiry of five years, which is life of the Notification, imposing ADD. As noticed above, the Notification imposing ADD, dated 16.12.2010 had lapsed on 07.12.2014. Therefore, the extension Notification, dated 05.01.2015, issued after the lapse of the said period is not sustainable, and no ADD can be demanded from the petitioner, based on such extension Notification. The demand of ADD under the show cause notice dated 28.10.2015, for the period from 08.12.2014 to 26.04.2016, i.e. after the lapse of the Notification No.125 of 2010 is not sustainable. Petition allowed.
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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