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2007 (8) TMI 502 - AT - CustomsAnti-dumping duty - Provisional assessment - Demand - Imposition of - Notification No. 73/03-Cus. - Held that - the Notification No. 73/03-Cus. dated 2-5-03 (final anti dumping notification) issued effective from 2-5-02 is not ultra vires the powers of the Central Government. It is nowhere held that even if particular imports from an exporter from China are above the normal value and not at dumped prices, still anti dumping duty has to be imposed on such exports/imports. The purpose of relying on Notification No. 80/04-Cus. is to show that the factual finding of the Designated Authority to the effect that Nanhai has not dumped the goods-has been accepted by the Central Government by issuance of Notification No. 80/04-Cus. The provisional assessments made in the present cases are non est in the eye of law for the reason that Sec. 18 of the Customs Act 1962 relating to provisional assessment has not been borrowed for the purpose of anti-dumping duty - No anti dumping duty can be levied on imports made during the interregnum period between the expiry of the provisional levy and the levy of final anti-dumping duty, under Rule 21 of the Anti Dumping Rules, 1995. Appeal allowed.
Issues Involved:
1. Levy of anti-dumping duty on vitrified/porcelain tiles from China/UAE. 2. Validity of provisional assessments for anti-dumping duty. 3. Applicability of Section 28 of the Customs Act for retrospective levy. 4. Application of Rule 21 of the Anti-Dumping Rules, 1995. 5. Specific cases of Abhinav Ceramics, Harsh International, and Nitco Tiles Ltd. Detailed Analysis: 1. Levy of Anti-Dumping Duty: The appeals concern the imposition of anti-dumping duty on vitrified/porcelain tiles imported from China/UAE under Notification No. 73/03-Cus. dated 1-5-03. The duty was initially imposed by Notification No. 50/02-Cus. dated 2-5-02 and was effective until 1-11-02. The final findings led to Notification No. 73/03-Cus., which retroactively imposed the duty from 2-5-02. 2. Validity of Provisional Assessments: The appellants argued that Section 18 of the Customs Act, which pertains to provisional assessment, has not been incorporated for anti-dumping duties. The tribunal agreed, stating that Section 9A(8) of the Customs Tariff Act does not borrow provisions related to provisional assessment from the Customs Act. Consequently, the provisional assessments in these cases are non est in law. 3. Applicability of Section 28 of the Customs Act for Retrospective Levy: The tribunal held that Section 28, which deals with non-levy or short-levy, is not applicable for recovering duties imposed retrospectively. This is supported by the decision in Chhotabhai Jethabhai Patel and Co. v. Union of India, where it was ruled that retrospective levies cannot be recovered under Section 28. Since the duty was not leviable at the time of import, Section 28 cannot be invoked. 4. Application of Rule 21 of the Anti-Dumping Rules, 1995: Rule 21 states that if the final anti-dumping duty is higher than the provisional duty, the differential cannot be collected. The tribunal interpreted that for the interregnum period, where provisional duty was zero, the final duty cannot be levied. The tribunal also noted that the five-year period for anti-dumping duties should be calculated from the date of provisional duty imposition to avoid exceeding the statutory limit. 5. Specific Cases: - Abhinav Ceramics: The bill of entry was filed before the issuance of Notification No. 50/02-Cus. Since the import occurred on 1-5-02, no anti-dumping duty was payable, and any duty paid is refundable. - Harsh International: The import on 22-10-02 was during the validity of Notification No. 50/02-Cus. The tribunal ruled that no additional duty could be demanded under Notification No. 73/03-Cus. as per Rule 21(1). - Nitco Tiles Ltd.: Imports were from Nanhai/Prestige, which were later found not to have dumped goods into India. The Designated Authority's findings led to Notification No. 80/04-Cus., exempting these imports from anti-dumping duty. Thus, no duty can be imposed on these imports. Conclusion: The tribunal concluded that: - Provisional assessments are invalid for anti-dumping duties. - Retrospective levies cannot be recovered under Section 28 of the Customs Act. - No anti-dumping duty can be imposed for the interregnum period. - Specific exemptions apply to imports by Nitco Tiles Ltd. and others as per the Designated Authority's findings. The impugned orders were set aside, and the appeals were allowed.
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