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2023 (11) TMI 624 - HC - CustomsImposing antidumping duty on Nylon Filament yarn - Legality of the impugned notifications dated 13 January 2012 and 19 January 2017 issued by the Government of India in exercise of the provisions of Section 9A(5) of the Customs Tariff Act 1975 - HELD THAT - The Division Bench of this Court in Gima Manufacturing Pvt. Ltd. Anr. 2017 (8) TMI 630 - BOMBAY HIGH COURT wherein referring to the decision of the Supreme Court in Union of India Anr. vs. M/s. Kumho Petrochemicals Company Ltd. 2017 (6) TMI 526 - SUPREME COURT has held that wo things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic such a duty during the period of review has to be imposed before the expiry of the period of five years which is the life of the Notification imposing anti-dumping duty. Even otherwise Notification dated January 23 2014 amends the earlier Notification dated January 02 2009 which is clear from its language and has been reproduced above However when Notification dated January 02 2009 itself had lapsed on the expiry of five years i.e. on January 01 2014 and was not in existence on January 23 2014 question of amending a non-existing Notification does not arise at all. As a sequitur amendment was not to be carried out during the lifetime of the Notification dated January 02 2009. The High Court thus rightly remarked that Notification dated January 02 2009 was in the nature of temporary legislation and could not be amended after it lapsed. The law as laid down by the Supreme Court under Article 141 of the Constitution of India is the law of land. Once the principle of law has been laid down by the Supreme Court it is binding on all the Courts in the country which would also include this Court and the Tribunal. For such reason the petitioner is not agreed with when he submits that such a position in law is not likely to be considered in the proceedings which are pending before the CESTAT. In the present case the CESTAT is already seized of the matter. There are several grounds on facts and law which are raised - it is required to observe that the petitioner is not precluded from urging all contentions as raised in this petition before the Tribunal including to assert its contentions that by virtue of the principles of law as laid down by the Supreme Court if applicable in the facts of the present case the petitioner would become entitled to refund of duty. Petition disposed off.
Issues involved:
The legality of impugned notifications dated 13 January, 2012 and 19 January, 2017 imposing antidumping duty on Nylon Filament yarn under Section 9A(5) of the Customs Tariff Act, 1975. Judgment Summary: Issue 1: Legality of Impugned Notifications The petitioner challenged the notifications imposing antidumping duty on Nylon Filament yarn, arguing that such amendments cannot be made after the primary notification has lapsed. Citing precedents like Union of India vs. M/s. Kumho Petrochemicals Co. Ltd., it was contended that amendments to non-existing notifications are impermissible. The Supreme Court emphasized that amendments should not be carried out during the lifetime of the original notification. The High Court concurred, stating that the amendment of a lapsed notification is legally untenable. However, the Court declined to order a refund of the duty paid post-amendment, citing the doctrine of unjust enrichment. Issue 2: Applicability of Unjust Enrichment Regarding the refund of antidumping duty paid after a certain date, the Court noted conflicting views on the applicability of the doctrine of unjust enrichment. While the petitioner sought a refund based on previous judgments, the Court upheld the decision of a prior case which required compliance with the law for any refund. The Court directed the respondent to grant a refund if entitled, subject to legal requirements. Issue 3: Binding Precedents The Court emphasized that decisions of the Supreme Court under Article 141 of the Constitution are binding on all courts, including the High Court and the Tribunal. It was stated that the principles of law established by the Supreme Court must be followed by all courts in the country. The petitioner was advised to present all contentions before the Tribunal, including the entitlement to a refund based on the Supreme Court's legal principles. In conclusion, the petition was disposed of with liberty granted to the petitioner to raise contentions before the Tribunal and seek early disposal of the pending appeal, with no costs imposed.
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