2016 (2) TMI 861 - HC - Customs

Retrospective levy of anti-dumping duty - provisional duty was imposed on 25.07.2014 and the same could not extend beyond six months, that is, 24.01.2015. The notification has been issued on 27.05.2015, therefore, there is a gap between 25.01.2015 and 26.05.2015. - One of the issues raised was that the Central Government could not have levied the anti dumping duty retrospectively and that in case it did so, the provisions of Rule 20(2)(a) would be ultra vires the Customs Tariff Act, 1975 which does not speak of retrospectivity. - Held that - in order to avoid the provisions of Rule 20(2)(a) being rendered ultra vires Section 9A of the said Act, the Supreme Court has clearly held that no duty can be collected during the Gap Period . - no anti dumping duty can be levied and collected during the gap period . - Decided in favor of petitioner.

Summary

Issues:
Challenging imposition of anti-dumping duty on Purified Terephthalic Acid (PTA) from Thailand and Korea.

Merits of the Matter:
The petitioners challenged the imposition of anti-dumping duty on PTA from Thailand and Korea. The court noted that the petitioners should have filed an appeal under Section 9C of the Customs Tariff Act, 1975, instead of a writ petition. However, the court granted the petitioners liberty to file an appeal against the final findings and notification on merits. The respondents assured not to raise the issue of limitation if the appeal is filed within two weeks. The court expected the Custom Excise & Service Tax Appellate Tribunal (CESTAT) to dispose of the appeal expeditiously, preferably within six months.

Retrospectivity of Anti-Dumping Duty:
The court analyzed the retrospectivity of the anti-dumping duty imposed from the provisional duty date to the notification date. The court referred to the Supreme Court judgment in Commissioner of Customs, Bangalore v. G.M. Exports, clarifying Rule 20(2)(a) of the Customs Tariff Rules, 1995. The Supreme Court held that no duty can be collected during the "gap period" between the lapse of provisional duty and the imposition of final duty. This decision was crucial in determining that no anti-dumping duty can be levied or collected during the "gap period." The court declared that, to avoid Rule 20(2)(a) being ultra vires Section 9A, no duty can be imposed during the "gap period."

Conclusion:
The High Court disposed of the writ petition with directions for the petitioners to file an appeal against the final findings and notification on merits. The court clarified that no anti-dumping duty can be levied or collected during the "gap period" between the lapse of provisional duty and the imposition of final duty. The judgment emphasized adherence to the Supreme Court decision in G.M. Exports regarding the retrospectivity of anti-dumping duty.