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2022 (7) TMI 1199 - HC - CustomsMaintainability of appeal before the High Court - Imposition of ADD - DI Pipes originating in or exported from China - Request for second sunset review - case of appellant that the claim of respondents regarding the likelihood of recurrence of the injury, in the event of cessation of ADD, was not made out - HELD THAT - CTA, inter alia, provides for levy of additional duty (equal to excise duty for the time being leviable on like articles produced or manufactured in India), countervailing duty (CVD); safeguard duty and ADD. This is apparent on a bare perusal of Sections 3, 8(B), and 9(A) of the said Act i.e., CTA - Insofar as anti-dumping is concerned, both CTA and the 1995 Rules provide for a mechanism for initiating an investigation, albeit in the prescribed manner, provided the affected party i.e., the complainant meets the requisite parameters, as provided in the CTA and the attendant rules. The review, concerning the imposition of ADD, is provided in sub-section (5) of Section 9A of the CTA, read with Rule 23 of the Rules. The review can be carried out by the DA, either on its own initiative or upon a request being made in that behalf by an interested party under sub-rule (1A) of Rule 23 of the 1995 Rules - sub-rule (1B) of Rule 23 provides, that ADD can be imposed for a period not exceeding five years from the date of its imposition unless the DA comes to a contrary conclusion. Once the investigation is commenced, the DA is obliged to inquire as to the existence, degree and effect of the alleged dumping in relation to the import of the subject article. The investigation, thus, requires the DA to identify the article and also submit findings, provisional or otherwise, to the Central Government concerning the normal value, export price and margin of dumping concerning the article under investigation, and that, such dumped article is causing injury or threatens injury to an industry established in India or would bring about material retardation in the establishment of such an industry in India - clearly, the nature of the inquiry, even in the first instance, when a decision is to be taken concerning the imposition of ADD, requires the DA to keep all the aforesaid facets in mind, before it can recommend to the Central Government, the amount of ADD which is to be imposed in a given case. It is, to our minds, a decision, which is industry-specific, being a remedial measure, that, the Central Government may take to preserve the interests of the domestic industry. The provisions of sections 35G and 35L of the CE Act are pari materia with the provisions of section 130 and section 130E(b) of the 1962 Act. Under section 35G of the CE Act, an appeal lies to the High Court from every order passed in appeal by the Appellate Tribunal, if it involves a substantial question law under section 35G(1), save and except when the order concerns determination of any question having a relation to the rate of duty of excise or the value of goods of the purposes of assessment . The appeal, thus, relating to the rate of duty or the value of goods for the purposes of assessment, under section 35L(b) of the CE Act lies to the Supreme Court. It is in this context, that matters concerning exigibility to tax, were required to be dealt with by the Supreme Court, under Section 35L(b) of the CE Act. If the Court were to conclude, that the activity did not fall within the four corners of the concerned statute, no tax/duty would be leviable. Likewise, if an activity or the subject goods are so classified to fall in an entry, different from the one which the revenue propounds, more often than not, it would impact the rate of duty. Such a situation may also arise when one is dealing with an exemption notification. Its impact may lead to a situation, where the assessee may either become the beneficiary of a concessional rate of duty, or even a nil rate of duty - However, this is not the situation that arises for consideration in the instant case. The second sunset review, that the DA has carried out, relates to the ascertainment of whether or not withdrawing ADD would be injurious to the domestic industry i.e., will the withdrawal lead to continuation or recurrence of injury. There is one last aspect that is required to be dealt with. Mr Ramesh Singh had also raised an objection with regard to the tenability of the appeal on the ground that it was not preferred by the Principal Commissioner or Commissioner of Customs as provided in section 130(2) of the 1962 Act. It is required to be borne in mind, that the provisions of the 1962 Act and the rules and regulations made thereunder become applicable by virtue of sub-section (8) of section 9A of the CTA. A plain reading of sub-section (2) of section 130 of the 1962 Act would demonstrate, that the appeal to this Court could be preferred either by the Principal Commissioner of Customs or Commissioner of Customs or even other party aggrieved by any order of the Tribunal. The DA, to our minds, would if nothing else, fall within the category of other party . Therefore, this objection is without merit, and hence is rejected. The preliminary objection taken by the respondents, as regards the maintainability of the instant appeal, cannot be sustained - Registry is directed to list the appeal, for further directions, on the date
Issues Involved:
1. Maintainability of the appeal under Section 130 of the Customs Act, 1962. 2. Determination of whether the appeal concerns the "rate of duty" or its continued imposition. 3. Jurisdiction of the High Court versus the Supreme Court under Section 130E(b) of the Customs Act, 1962. 4. Procedural aspects and compliance with anti-dumping duty (ADD) regulations. Issue-wise Detailed Analysis: 1. Maintainability of the Appeal: The respondents raised a preliminary objection regarding the maintainability of the appeal under Section 130 of the Customs Act, 1962, arguing that it concerns the "rate of duty" and its continued imposition. They contended that such matters should be appealed to the Supreme Court under Section 130E(b) of the Customs Act, 1962. The appellants argued that the appeal does not directly relate to the rate of duty but to whether the cessation of ADD would lead to the continuation or recurrence of dumping or injury to the domestic industry. 2. Determination of Whether the Appeal Concerns the "Rate of Duty": The respondents argued that the decision to not continue with the imposition of ADD is related to the rate of duty, citing various provisions of the Customs Tariff Act, 1975, and the 1995 Rules. They emphasized that the determination of ADD involves factors such as the margin of dumping and injury to the domestic industry. The appellants countered by stating that the appeal concerns the likelihood of injury to the domestic industry if ADD is discontinued, rather than the specific rate of duty. 3. Jurisdiction of the High Court versus the Supreme Court: The respondents relied on the judgment in Commissioner of Service Tax v. ERNST & Young P. Ltd. to argue that matters related to the rate of duty should be appealed to the Supreme Court. The appellants cited judgments such as Navin Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs and Steel Authority India Ltd. v. Designated Authority, Directorate General of Anti-Dumping and Allied Duties to support their claim that the appeal is maintainable in the High Court as it does not directly concern the rate of duty. 4. Procedural Aspects and Compliance with ADD Regulations: The case involved a series of procedural steps and compliance with ADD regulations. The background included multiple notifications, investigations, and reviews concerning the imposition and continuation of ADD on DI Pipes originating from China. The respondents had approached various courts, including the Gujarat High Court and the Supreme Court, seeking directions on the continuation of ADD. The Tribunal had remitted the matter to the Designated Authority (DA) for re-determination of ADD, which was contested by the appellants. Analysis and Reasons: The court analyzed the provisions related to ADD, emphasizing that ADD is a trade remedial measure distinct from customs duty. The court noted that the DA's role involves investigating allegations of dumping, determining the existence and effect of dumping, and recommending the imposition of ADD to protect the domestic industry. The court concluded that the appeal did not directly concern the rate of duty but rather the likelihood of injury to the domestic industry if ADD is discontinued. The court also rejected the objection that the appeal was not preferred by the Principal Commissioner or Commissioner of Customs, stating that the DA falls within the category of "other party" aggrieved by the Tribunal's order. Conclusion: The court held that the preliminary objection regarding the maintainability of the appeal could not be sustained. The Registry was directed to list the appeal for further directions on the specified date.
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