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2017 (8) TMI 630 - HC - CustomsAnti-dumping duty - Whether Amendment Notification dated January 23 2014 amending Notification dated January 02 2009 by allowing it to remain in force till January 01 2015 issued after the expiry date of the original Notification i.e. January 01 2014 is without any legal authority and is therefore null and void? Held that - as the facts involved in the present petition are identical to the Apex Court decision in Union of India vs. M/s. Kumho Petrochemicals Co. Ltd 2014 (7) TMI 732 - DELHI HIGH COURT the impugned N/N. 37 of 2015 dt.6.8.2015 is quashed and set aside. Besides seeking quashing of the impugned notification the petitioners also seek a direction that the respondent be directed to refund anti-dumping duty paid by the petitioner after 25.7.2015. We are not inclined to grant this prayer in view of decision of this Court in Commissioner of Customs (Imports) Mumbai .vs. Kanakia Constructions Pvt. Ltd. 2008 (7) TMI 156 - HIGH COURT BOMBAY wherein our Court has set aside the order of Central Excise Customs and Service Tax Appellate Tribunal which had held that since antidumping duty is covered by Section 9A of the Customs Tariff Act 1975 the doctrine of unjust enrichment does not apply. This Court restored the issue to the Tribunal for fresh consideration and also examine whether the doctrine of unjust enrichment is applicable in the facts of the case. The petitioners would be entitled to refund of anti-dumping duty paid after 25.7.2015 on our having set aside the N/N. 37/2015 it would be subject to compliance with the law - petition allowed - decided in favor of petitioner.
Issues:
Challenge to Notification No.37 of 2005 Customs (ADD) issued by Central Government under Customs Tariffs Act, 1975 - Power to amend lapsed Notification - Refund of anti-dumping duty paid post-lapsing of Notification. Analysis: Issue 1: Challenge to Notification No.37 of 2005 Customs (ADD) The petition under Article 226 challenges Notification No.37 of 2005 issued by the Central Government under Section 9A (1) and (5) of the Customs Tariffs Act, 1975. The impugned notification extended the life of a previous antidumping duty notification beyond its expiry date, raising the question of the legality of amending a lapsed notification. The Apex Court's decision in a similar case emphasized that an amendment cannot be made to a non-existing notification, and the power to extend the duty is not automatic but must be exercised before the expiry of the original notification. Issue 2: Power to amend lapsed Notification The High Court's decision, following the Apex Court's ruling, quashed and set aside the impugned Notification No.37 of 2015 as it was issued after the expiry of the original notification, which was considered as temporary legislation. The judgment highlighted that the amendment was not to be carried out during the lifetime of the original notification, emphasizing the need for compliance with legal provisions regarding the extension of duty periods. Issue 3: Refund of anti-dumping duty paid post-lapsing of Notification While the petitioners sought a refund of anti-dumping duty paid after the expiry of the original notification, the Court considered the applicability of the doctrine of unjust enrichment. Referring to a previous decision, the Court directed the respondent to grant a refund of the duty paid after the lapse of the notification, subject to compliance with the law. The judgment emphasized the need for adherence to legal requirements even when granting refunds, based on the principles established in previous rulings. In conclusion, the High Court's judgment addressed the challenges to the impugned notification, clarified the limitations on amending lapsed notifications, and provided directions regarding the refund of anti-dumping duty paid post-lapsing of the notification, emphasizing compliance with legal principles in such matters.
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