2011 (4) TMI 521 - HC - Customs

Anti-dumping duty - Notification No. 41/97-Cus., dated 30-4-1997 - Board Circular No. 106/95-Cus., dated 11-10-1995 - Application for rectification of mistakes - The petitioner contends that in terms of Rule 13 of the Anti-Dumping Rules, the provisional duty could remain for a period of six months, which may be extended for a further period as provided for under Rule 14 of the Anti-Dumping Rules - The withdrawal of anti-dumping duty with effect from 22-1-2001 would, in no way, affect the levy and collection of anti-dumping duty and the earlier notifications - Once on factual findings, the Government found that there was no dumping of materials from the People s Republic of China in the local market and hence, the anti-dumping laws could not be invoked, the question of preserving any such authority to impose duty under the anti-dumping laws, does not arise - The latter portion of the Notification, which is under challenge before this Court, clearly demands the attention of the respondents to the policy of the Government, to give a full thrust to it and not to whittle it down on any assumed interest in the name of implementing the Anti-Dumping Laws - Appeal is allowed

Summary

Issues Involved:

1. Levy of anti-dumping duty on imports under a Quantity Base Advance Licence (QBAL).
2. Justification of levy in light of Board Circular No. 106/95-Cus.
3. Tribunal's consideration of the ROM application.
4. Tribunal's dismissal of appeal based on para 13 of the Third Member's order.
5. Relevance of preliminary findings for imports made during the disputed period.

Detailed Analysis:

1. Levy of Anti-Dumping Duty on Imports under QBAL:
The appellant challenged the levy of anti-dumping duty on imports made under the QBAL, citing Notification No. 41/97-Cus., dated 30-4-1997. The court noted that the imports were covered under the EXIM Policy for 1992-97 and that the Designated Authority had initiated investigation proceedings based on a complaint. Despite provisional demands, the court found that the Government later rescinded the anti-dumping duty through Notification No. 5/2001-Cus., dated 22-1-2001, due to no injury to the domestic market. The court agreed with the appellant that the levy could not be justified post-rescission.

2. Justification of Levy in Light of Board Circular No. 106/95-Cus:
The appellant argued that the Board Circular No. 106/95-Cus., dated 11-10-1995, allowed for duty drawback or refund of anti-dumping duty on imported inputs used in exported goods. The court considered the appellant's compliance with the EXIM Policy and the actual user's licence, concluding that the anti-dumping duty was not applicable when the export obligations were fulfilled.

3. Tribunal's Consideration of the ROM Application:
The appellant contended that the Tribunal disposed of the appeal without considering the ROM application. The court did not explicitly address this issue in detail but focused on the broader context of the anti-dumping duty's applicability and the rescission of the relevant notifications.

4. Tribunal's Dismissal of Appeal Based on Para 13 of the Third Member's Order:
The appellant argued that the Tribunal dismissed the appeal solely based on para 13 of the Third Member's order, which declined to address the appellant's arguments due to the pending ROM application. The court found that the broader issue of anti-dumping duty's applicability rendered this specific procedural contention less critical.

5. Relevance of Preliminary Findings for Imports Made During the Disputed Period:
The appellant questioned the relevance of preliminary findings for the investigation period (1-4-1995 to 30-9-1995) to the disputed import period (28-10-1996 to 25-2-1997). The court noted that the Designated Authority's final findings, which led to the rescission of anti-dumping duty, indicated no dumping injury, thus nullifying the preliminary findings' relevance.

Conclusion:
The court declared that Notification No. 5/2001-Cus., dated 22-1-2001, which rescinded the anti-dumping duty, was ultra vires certain sections of the Customs Tariff Act and the Constitution of India. Consequently, the levy of anti-dumping duty on the appellant's imports was deemed unjustified. The court allowed the appeal and closed the related writ petitions, emphasizing the importance of the EXIM Policy's objectives in promoting exports without undue imposition of anti-dumping duties.