2022 (8) TMI 844 - HC - Customs

Levy of Anti-dumping duty - import of unclad/non-clad aluminium foil from China PR - exclusion in the Notification No.23/2017, Respondent No.4, the Commissioner of Customs, JNPT assessed all the imports of clad aluminium foil from China PR without payment of anti-dumping duty - no reply has been filed though the Petition has been served more than a year ago - HELD THAT - The portion which is relevant to the Petition at hand is Subclause (iii) of Clause (b) of Sub-section (1) of Section 9(B). This provides that the Central Government shall not levy any anti-dumping duty under Sub-section (2) of Section 9(A) on import into India of any article from the specified countries unless in accordance with the rules made under Sub-section (2) of Section 9(A), a preliminary finding has been made of subsidy or dumping and consequent injury to domestic industry, and a further determination has also been made that a duty is necessary to prevent injury being caused during the investigation. As could be seen from the averments in the Petition as well as the Rules, the finding has to be given by the Directorate General of Anti-Dumping and Allied Duties in the Department of Commerce, Ministry of Commerce and Industry, Government of India. Subsequently, there is a clarification issued by the Directorate General of Anti-Dumping and Allied Duties on 1st February, 2018 which is quoted earlier. Therefore, it is quite clear that clad as well as clad with compatible non-clad or unclad aluminium foil has been excluded from anti-dumping duty. Respondent No.4 therefore was not justified in insisting on payment of anti-dumping duty for clearance of unclad or non-clad consignment of aluminium foil, more so, when the same product is allowed to be imported from other ports without insisting on payment of levy of anti-dumping duty. Thus, it is declared that levy and collection of ADD on unclad or non-clad aluminium foils for automobile industry imported from China PR in terms of Notification No.23/2017-Cus.(ADD) dated 16.05.2017, is incorrect and contrary to Section 9A read with 9B(b)(iii) of the Customs Tariff Act, 1975 and read with paragraph(s) 9(ii)(c), 12, 31, 79 and 136(xlix) of Final Findings dated 10.03.17 - it is directed that Respondents by themselves, their officers, subordinates, servants and agents to forthwith grant refund of Antidumping Duty paid by the Petitioner under protest on import of unclad/non-clad aluminium foil from China PR in terms of Notification No.23/2017 Cus. (ADD) dated 16.05.2017 during the period from August 2017 to December 2018. Respondent No.4 are directed to refund all amounts paid by Petitioner with applicable interest in accordance with law/return all bank guarantees - petition disposed off.

Summary

Issues Involved:
1. Levy of anti-dumping duty on unclad/non-clad aluminium foil imported from China PR.
2. Compliance with Section 9A and 9B of the Customs Tariff Act, 1975.
3. Clarification of exclusions in the final findings and notifications.
4. Refund of anti-dumping duty paid under protest.

Detailed Analysis:

1. Levy of Anti-Dumping Duty on Unclad/Non-Clad Aluminium Foil:
The petitioner, a company engaged in manufacturing heat exchangers and related products, challenged the insistence of the Commissioner of Customs for the payment of anti-dumping duty on unclad/non-clad aluminium foil imported from China PR. The Directorate General of Trade Remedies (DGTR) had initiated an investigation and concluded with final findings on 10th March 2017, excluding certain aluminium foils from the scope of anti-dumping duty as they were not produced in India and did not cause injury to the domestic industry.

2. Compliance with Section 9A and 9B of the Customs Tariff Act, 1975:
Section 9A provides for anti-dumping duty on dumped articles, while Section 9B outlines situations where such duty cannot be imposed. The relevant portion, Subclause (iii) of Clause (b) of Sub-section (1) of Section 9B, states that anti-dumping duty shall not be levied unless a preliminary finding of subsidy or dumping and consequent injury to domestic industry is made. The court noted that there was no such preliminary finding for unclad or non-clad aluminium foil.

3. Clarification of Exclusions in the Final Findings and Notifications:
The final findings by DGTR explicitly excluded both clad and unclad/non-clad aluminium foils with post brazing yield strength greater than 35 MPA from the scope of anti-dumping duty. Despite this, the Commissioner of Customs continued to levy the duty on unclad/non-clad aluminium foil. The court referred to the clarification issued by DGTR on 1st February 2018, confirming that both clad and unclad/non-clad aluminium foils were excluded from anti-dumping duty. The notification issued by the Central Government on 16th May 2017 also excluded certain aluminium foils from the levy of anti-dumping duty.

4. Refund of Anti-Dumping Duty Paid Under Protest:
The petitioner paid the duty under protest and sought a refund. The court allowed the petition, declaring that the levy of anti-dumping duty on unclad/non-clad aluminium foils was incorrect and contrary to the provisions of the Customs Tariff Act and the final findings. The court directed the respondents to refund the anti-dumping duty paid by the petitioner along with applicable interest and return all bank guarantees submitted by the petitioner within eight weeks.

Conclusion:
The court concluded that the levy of anti-dumping duty on unclad/non-clad aluminium foil was unjustified and directed the refund of the amounts paid under protest. The petition was disposed of with no order as to costs.