2015 (9) TMI 1017 - HC - Customs

Levy of Anti Dumping Duty - petitioner seeks a declaration that Note 3 of the Notification No.125/2010 Cus. dated 16.12.2010 is ultra vires to the Customs Act,1962 and the Customs Tariff Act - Held that - The petitioner is primarily raising the issue of construction and interpretation of the Notes and the Notification as a whole.The petitioner has placed their version and interpretation on the Notification and the Notes below the same. The impugned Note 3 is also sought to be interpreted by them and in the backdrop of a larger picture.The petitioner urges that anti-dumping duty cannot be imposed and recovered unless all pre conditions are satisfied. Secondly, the equipment as a whole comprises of several parts and components and has to be viewed accordingly. If the components and parts themselves are imported on standalone basis, then, the same are out of the purview of this duty, is equally its interpretation. This is a matter which involves the acceptance or otherwise version or interpretation of the petitioner and in relation to the duty, its levy, imposition and the cases in which same cannot be levied, imposed and recovered. - it is not necessary to express any opinion on the rival contentions. More so, when Mr. Jetly, on instructions, assures that the Authority adjudicating the show cause notice will pass an order by application of independent mind, uninfluenced by the version placed in the affidavit filed by Dr. Sumit Garg, Assistant Director of B Cell, Directorate of Revenue Intelligence, Mumbai Zonal Unit, Mumbai. - petition disposed of.

Summary

Issues Involved:
1. Constitutionality of Note 3 of Notification No.125/2010-Cus dated 16.12.2010.
2. Imposition and recovery of Anti-Dumping Duty on SDH transmission equipment and its parts.
3. Interpretation and application of the Notification and its Notes.

Detailed Analysis:

1. Constitutionality of Note 3 of Notification No.125/2010-Cus dated 16.12.2010:

The petitioner seeks a declaration that Note 3 of Notification No.125/2010-Cus dated 16.12.2010 is ultra vires to the Customs Act, 1962, and the Customs Tariff Act. The petitioner argues that anti-dumping duty cannot be imposed unless it is established that the product under consideration is manufactured by the domestic industry, causing material injury. The petitioner contends that Note 3, as interpreted by the Revenue, contradicts other Notes and is unconstitutional, void, and of no legal effect.

2. Imposition and recovery of Anti-Dumping Duty on SDH transmission equipment and its parts:

The petitioner challenges the imposition of anti-dumping duty on SDH transmission equipment and its parts, arguing that such duty should not be levied on parts imported as part of non-SDH transmission equipment. The petitioner asserts that the components or parts of SDH imported on a standalone basis are outside the purview of the product under consideration and should not be subjected to anti-dumping duty. The Revenue, on the other hand, maintains that the duty is imposed based on the final findings of the designated authority, which includes parts imported as part of SDH equipment.

3. Interpretation and application of the Notification and its Notes:

The core issue revolves around the interpretation and application of the Notification and its Notes. The petitioner argues that the Notification and Notes should be construed in a manner that excludes standalone components or parts of SDH from anti-dumping duty. The Revenue contends that the Notification and Notes, including Note 3, are consistent with the Customs Act and the Customs Tariff Act, and the anti-dumping duty is rightly imposed. The court, however, refrains from expressing any opinion on the interpretation of the Notification and Notes at this stage, leaving the matter to be adjudicated by the appropriate authority.

Conclusion:

The court concludes that it is not necessary to determine the larger question of the vires of Note 3 at this stage. The court emphasizes that the matter involves interpretation of the Notification and Notes, which should be addressed during the adjudication proceedings. The court clarifies that the issue of vires is kept alive and can be raised again if adverse orders are passed in the adjudication proceedings. The Adjudicating Authority is directed to pass an order on merits and in accordance with law, uninfluenced by the stand taken in the affidavit in reply. The writ petition is disposed of with these clarifications.