2023 (9) TMI 666 - AT - Customs

Refund of antidumping duty in excess of the actual dumping margin determined for such article - Reduction in rate of ADD after clearance of goods - phenol originating in or exported from Korea, Taiwan or USA - denial of refund claim solely on the ground that the notification resending rescinding the anti-dumping duty does not apply to past clearances - HELD THAT - The entire argument in the impugned order is based on the following words appearing in the said notification except as respects things done or omitted to be done before such suppression . This exact expression has been examined by Hon ble High Court of Madras in case of VETCARE ORGANIC PVT. LTD. VERSUS CESTAT, CHENNAI 2011 (4) TMI 521 - MADRAS HIGH COURT , wherein it was held that we allow writ Petition No. 21504 of 2001 and declare that Notification No. 5/2001-Cus., dated 22-1-2001, issued by the first respondent, in so far as it purports to save things done or omitted to be done before such rescission, is ultra vires Sections 9A, 9AA, 9B and 10 of the Customs Tariff Act, 1975, Article 265 of the Constitution of India and Rules 13, 17, 18(4) and 21(3) of the Customs Tariff (Identification Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, in so far as the petitioner is concerned. The impugned order cannot be sustained - The impugned order is set aside and appeal is allowed.

Summary

Issues:
The issues involved in the judgment are the rejection of a refund claim related to the payment of anti-dumping duty in excess of the actual dumping margin, and the applicability of a customs notification to past periods.

Issue 1: Refund Claim Rejection
The appellant, M/s. Century Plyboards I Ltd., filed an appeal against the rejection of their refund claim for anti-dumping duty paid in excess of the actual dumping margin. The claim was based on the recommendation of the Director General of Anti-Dumping (DGAD) regarding lower dumping margin and negative injury for imports of phenol during a specific period. The Ministry of Finance implemented the DGAD's recommendation by revoking the anti-dumping duty through a customs notification. The appellant argued that since the dumping margin was lower and there was no injury during the relevant period, the duty paid should be refunded to them.

Issue 2: Applicability of Customs Notification
The impugned order sought to deny the refund claim on the grounds that a specific customs notification did not apply to past periods. The argument was based on the language of the notification stating "except as respects things done or omitted to be done before such suppression." The appellant contended that this interpretation was incorrect, citing a case from the Hon'ble High Court of Madras involving a similar expression in a notification. The High Court's decision emphasized the importance of following the provisions of anti-dumping laws and highlighted that once a finding of no dumping is made, the authority cannot preserve the right to impose or maintain a duty. The Court declared that the notification in question was ultra vires certain sections of the Customs Tariff Act and the Constitution of India. The Tribunal, considering these arguments, set aside the impugned order and allowed the appeal for the refund claim.

This summary provides a detailed overview of the issues involved in the judgment, highlighting the key arguments and decisions made by the Tribunal regarding the rejection of the refund claim and the interpretation of the customs notification in question.