2016 (1) TMI 827 - AT - Customs

Levy of anti-dumping duty on import of PVC resin DG-1000K from China - Notification No.11/2008-Cus - whether Notification No. 38/2008-Cus. dated 24.3.2008 inter alia amending Sl No. 19 of Notification No. 11/2008-Cus. dated 23.1.2008 has retrospective effect or prospective effect. - Revenue says that when name of the manufacturer was not appearing in Column No.8 of the notification dated 23.1.2008, the export shall fall under Sl.No.23 of the said Notification being any exporter as envisaged by the entry. Notifications issued under the powers conferred by any legislation are subordinate legislation and the authority vested with powers to issue the same has the authority to make it operational retrospectively. But such an intention should emerge from the expressions used in the Notification itself. In the present case, there is nothing in the Notification to indicate that the changes would take effect from the date when definitive anti-dumping duty was initially imposed on the product imported by the Appellants. For want of such an express intention in the Notification, it is difficult for me to accept the proposition that the amendment to the entry at Sr. No.19 was retrospective. Classification of imported product will be rightly under Sr. No.23 under Notification dated 23.1.2008. However, after amendment of notification in column 8 of Sr. No.9 of notification dated 24.3.2008, classification will be under Sr. No.19 of notification dt.24.3.2008. Majority decision - amending Notification No. 38/2008-Cus dated 24.3.2008 has only prospective application and does not have retrospective applicability. - Decided against the assessee.

Summary

Issues Involved:
1. Interpretation of Notification No. 11/2008-Cus dated 23.01.2008.
2. Applicability of amending Notification No. 38/2008-Cus dated 24.03.2008.
3. Retrospective vs. Prospective effect of the amending notification.

Detailed Analysis:

1. Interpretation of Notification No. 11/2008-Cus dated 23.01.2008:
The appellant imported PVC resin DG-1000K from China, manufactured by M/s. Tianjin Dagu Chemicals Co. Ltd. The appellant claimed that the imported goods should fall under Sl.No.19 of Notification No. 11/2008-Cus dated 23.01.2008, which imposes a lower anti-dumping duty. Revenue, however, argued that the goods should fall under Sl.No.23, which covers any other combination of producer-exporter and imposes a higher duty. The dispute arose because the original notification did not list M/s. Tianjin Dagu Chemicals Co. Ltd. as an exporter under Sl.No.19.

2. Applicability of Amending Notification No. 38/2008-Cus dated 24.03.2008:
The appellant argued that the amending notification, which included M/s. Tianjin Dagu Chemicals Co. Ltd. as an exporter under Sl.No.19, should be considered curative and thus effective from the date of the original notification (23.01.2008). The Revenue contended that the amendment should only apply from the date it was issued (24.03.2008). The difference in duty amounts between Sl.Nos.19 and 23 was significant, and the appellant sought the lower rate applicable under Sl.No.19.

3. Retrospective vs. Prospective Effect of the Amending Notification:
The Judicial Member opined that the amending notification should be considered curative and thus retrospective, aiming to correct an oversight in the original notification. This interpretation would ensure that the anti-dumping duty applied uniformly from the date of the original notification. On the other hand, the Technical Member argued that the amending notification should be prospective, as there was no explicit indication of retrospective intent in the notification itself. The Technical Member cited legal precedents to support the view that amendments to fiscal legislation are generally prospective unless expressly stated otherwise.

Majority Decision:
The majority decision, influenced by the opinion of the Technical Member, concluded that the amending Notification No. 38/2008-Cus dated 24.03.2008 should be applied prospectively. The rationale was that the notification did not explicitly state it was intended to have retrospective effect. Therefore, the imports by the appellant prior to 24.03.2008 would fall under Sl.No.23, attracting a higher anti-dumping duty.

Final Order:
In view of the majority decision, the appeal filed by the appellant was rejected. The imports were classified under Sl.No.23 of Notification No. 11/2008-Cus dated 23.01.2008 until the amendment on 24.03.2008, after which they would fall under Sl.No.19. The decision emphasized the principle that amendments to notifications are generally prospective unless clearly stated otherwise.