2015 (5) TMI 327 - AT - Customs

Levy of Anti dumping duty - import of Photopolymer of chloride Monomer (PVC) Suspension Grade - initially the name of the manufacturer was not appearing the Notification No.11/2008-Cus dated 23.1.2009 - Difference of opinion - matter referred to larger bench with following questions of law - Whether as per opinion of learned Member (Judicial), amending notification no. 38/2008-Cus dated 24.3.2008 making amendment in SI. No. 19 of the Notification No. 11/2008-Cus dated 23.01.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty. Or Whether as per opinion of Member (Technical), amending notification no. 38/2008-Cus dated 24.3.2008 making amendment in SI No. 19 of the Notification No. 11/2008-Cus will be prospective in nature.

Issues Involved:
1. Applicability of anti-dumping duty under Notification No. 11/2008-Cus dated 23.01.2008.
2. Interpretation of the amendment made by Notification No. 38/2008-Cus dated 24.03.2008.
3. Retrospective vs. prospective application of the amendment.

Detailed Analysis:

1. Applicability of Anti-Dumping Duty under Notification No. 11/2008-Cus dated 23.01.2008:
The appellant imported PVC from China, manufactured by M/s. Tianjin Dagu Chemicals Co. Ltd. The dispute arose over whether the goods fell under Sl. No. 19 or Sl. No. 23 of Notification No. 11/2008-Cus dated 23.01.2008. The appellant argued that the goods should fall under Sl. No. 19, which prescribes a lower anti-dumping duty for goods exported by Tianjin Bohai Chemical Industries Import and Export Corporation. The Revenue contended that the goods should fall under Sl. No. 23, which applies to any other combination of producer-exporter, attracting a higher duty.

2. Interpretation of the Amendment Made by Notification No. 38/2008-Cus dated 24.03.2008:
The amendment added the name of Tianjin Dagu Chemicals Co. Ltd. to column 8 of Sl. No. 19, implying that exports by this manufacturer should also fall under Sl. No. 19. The appellant argued that this amendment was curative and should apply retrospectively to cover their imports. The Revenue argued that the amendment should apply prospectively, meaning the goods imported before the amendment should fall under Sl. No. 23.

3. Retrospective vs. Prospective Application of the Amendment:
The Member (Judicial) held that the amendment was curative and should apply retrospectively from the date of the original notification (23.01.2008). This view was based on the rationale that the amendment aimed to correct a shortcoming in the original notification, ensuring that goods exported by the producer were also subject to anti-dumping duty under Sl. No. 19.

In contrast, the Member (Technical) disagreed, stating that the amendment should apply prospectively from 24.03.2008. The Member (Technical) emphasized that the notification did not explicitly state that it had retrospective effect, and applying it retrospectively would disrupt assessments made under the existing provisions. The Member (Technical) cited the Hon'ble Gujarat High Court judgment in CC (Preventive) vs. Goyal Traders, which held that statutory amendments imposing new liabilities are generally considered prospective unless explicitly stated otherwise.

Conclusion:
The two members of the tribunal delivered separate judgments:

- Member (Judicial): The amendment is curative and applies retrospectively, covering the appellant's imports under Sl. No. 19, thereby attracting a lower anti-dumping duty.
- Member (Technical): The amendment applies prospectively, and the appellant's imports fall under Sl. No. 23, attracting a higher anti-dumping duty.

The difference of opinion was referred to the Hon'ble President for an appropriate order. The final decision would determine whether the amendment to Notification No. 11/2008-Cus by Notification No. 38/2008-Cus has retrospective or prospective effect.

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