2018 (7) TMI 39 - HC - Customs

Refund of anti-dumping duty - N/N. 51/2015-Customs (ADD), dated 21.10.2015 - imports of fully oriented yarn/spin draw yarn/Flat yarn of Polyester (non-textured and non-POY) and other yarns originating in or exported from China PR, Thailand and Vietnam - effect of N/N. 5 of 2016-Cus.(ADD), dated 22.02.2016 as to whether it is clarificatory in nature and if so retrospective or whether it is prospective? Held that - The product under consideration is classified under the category Manmade Filaments in Chapter 54 of the Customs Tariff Act and further under 5402 47 as per Customs classification. However, Customs classification is indicative only and is in no way binding on the scope of the present investigation. In the final findings notification dated 29.09.2009 under Part B-Product under consideration and like Articles, para 4 states that the product in commercial market parlance is generally known as Fully Drawn Yarn . The Principal Notification No.51/2015-Cus(ADD) was issued on 21.10.2015 and the amendment to that notification was given vide Notification No.05/2016-Cus(ADD) on 22.02.2016. As per the Principles of Statutory Interpretation, it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation - Notification No.5 of 2016, dated 22.02.2016 being substitutive in nature is held to be retrospective. The respondent is directed to consider and sanction refund claim made by the petitioner as expeditiously as possible - petition allowed.

Summary

Issues Involved:

1. Whether Notification No.5 of 2016-Cus.(ADD), dated 22.02.2016, is clarificatory in nature and if so, whether it is retrospective or prospective.
2. Whether the petitioner is entitled to a refund of the anti-dumping duty paid based on the amended notification.
3. Whether the writ petitions should be entertained despite the availability of an alternative appellate remedy under the Customs Act, 1962.

Issue-Wise Detailed Analysis:

1. Retrospective or Prospective Nature of Notification No.5 of 2016-Cus.(ADD):

The core issue is the interpretation of Notification No.5 of 2016-Cus.(ADD), dated 22.02.2016, which substituted the entry "5402" with "5402 47" in the earlier notification dated 21.10.2015. The petitioner argued that the use of the word "substituted" implies that the amendment is retrospective. The court referred to several precedents, including the Supreme Court's decision in Zile Singh v. State of Haryana, which outlined factors to determine legislative intent for retrospective application. The court concluded that the notification is retrospective because the substitution implies that the entry should be read as "5402 47" from the date of the original notification, i.e., 21.10.2015.

2. Entitlement to Refund of Anti-Dumping Duty:

The petitioner sought a refund of the anti-dumping duty paid, arguing that the goods imported were high tenacity polyester yarn, which falls under Chapter Heading 5402 2090 and should not attract anti-dumping duty. The court held that due to the retrospective nature of the notification, the petitioner is entitled to a refund. The court directed the respondent to consider and sanction the refund claim within three months from the date of receipt of the order.

3. Entertaining Writ Petitions Despite Alternative Remedy:

The respondents contended that the writ petitions should not be entertained as the petitioner has an alternative appellate remedy under the Customs Act, 1962. However, the court noted that the issue involved a substantial question of law regarding the interpretation of the notification's retrospective effect. The court deemed it proper to adjudicate the matter and not relegate the petitioner to the appellate remedy, as the scope of interpretation by an appellate authority is limited.

Conclusion:

The court allowed both writ petitions. It directed the respondent to process the refund claim and set aside the order-in-original dated 22.03.2016, confirming that the petitioner is not liable for anti-dumping duty on the imported goods classified under Chapter Heading 5402 2090. The court held that Notification No.5 of 2016-Cus.(ADD) is retrospective, thus entitling the petitioner to a refund of the anti-dumping duty paid.