2012 (4) TMI 303 - HC - Customs

Recovery of short-levy of anti-dumping duty permissibility of such recovery before introduction of Section 9A(8) into the Customs Tariff Act, 1975 on 12-5-2006 - applicability of Section 28 of the Customs Act, 1962 invocation of extended period u/s 28A(1) - Held that - Amendment to Section 9A(8) to the Customs Tariff Act, 1975 is retrospectively effected from 1st January, 1995 Decided in favor of revenue. It is observed that Tribunal has not dealt with the contention of the assessee on merits and have adjusted deposit made by assessee during the investigation towards demand raised invoking extended period of limitation. Question of adjusting that amount would arise only if the demand is legally sustainable. Therefore, since plea relates to demand being time barred, we restore the matter to the file of CESTAT for de novo consideration.

Summary

Issues:
1. Recovery of short-paid anti-dumping duty pre-Section 9A(8) amendment
2. Applicability of Section 28 of the Customs Act to short levy of anti-dumping duty
3. Invocation of extended period under Section 28A(1) against the appellant

Analysis:
1. The High Court addressed the issue of recovering short-paid anti-dumping duty before the amendment to Section 9A(8) of the Customs Tariff Act, 1975. The court noted that the retrospective effect of the Finance (No.2) Act, 2009 from 1st January, 1995 necessitated ruling in favor of the revenue on this matter. Therefore, the court decided in favor of the revenue on this issue.

2. Regarding the applicability of Section 28 of the Customs Act, 1962 to the short levy of anti-dumping duty, the court concurred with the revenue's stance due to the legislative amendments. The court ruled in favor of the revenue on this issue as well.

3. The court examined the invocation of the extended period under the proviso to Section 28A(1) of the Customs Act, 1975 against the appellant. The court found that the Tribunal had not addressed the appellant's plea regarding the demand being time-barred on its merits. The court highlighted that the duty paid during the investigation was considered a deposit, and the issue of adjusting the amount would only arise if the demand was legally sustainable. Consequently, the court set aside the order related to the time-barred demand and remanded the matter to the CESTAT for a fresh consideration in accordance with the law.

In conclusion, the appeal was disposed of with no order as to costs, and the High Court provided a detailed analysis on each of the issues raised in the case, ultimately ruling in favor of the revenue on the first two issues and ordering a reevaluation of the time-barred demand issue.