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2024 (11) TMI 417 - HC - CustomsDemanding Anti-Dumping Duty (ADD) along with interest and penalty applicable - ADD levy from 08.12.2014 to 31.8.2015 in the OIO - whether the imposition of ADD for the period commencing on 08.12.2014 and ending on 31.8.2015 is in violation of common order dated 06.10.2017? HELD THAT - The admitted position is that the validity period of the ADD Notification was a five year period from 8.12.2009 to 7.12.2014. The Second ADD Notification was admittedly issued on 05.01.2015, after the lapse of the ADD Notification, and purports to extends the validity of the ADD Notification till 7.12.2015. The Supreme Court examined the validity of the Second ADD Notification in Kumho Petrochemicals 2017 (6) TMI 526 - SUPREME COURT two 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 antidumping duty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 2, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 2, 2009 itself had lapsed on the expiry of five years, i.e., on January 1, 2014, and was not in existence on January 23, 2014 question of amending a non- existing Notification does not arise at all. The demand of ADD for the period commencing on 08.12.2014 and ending on 31.08.2015 cannot be sustained. As regards the prior period (14.11.2014 to 07.12.2014), no break-up of either ADD liability or penalty has been provided. Therefore, interference with the impugned OIO in W.P. No.768 of 2018 is warranted. As regards the prior period (14.11.2014 to 7.12.2014), a conclusion can be drawn only after deciding on the other objections of the petitioner. Development Commissioner did not have jurisdiction to issue SCN I for the period July 2011 to August 2014 or SCN II for the period 14.11.2014 to 31.08.2015 - As regards jurisdiction, the SEZ Act clearly envisages the imposition of ADD on goods removed from a SEZ to a DTA. On and from 5.08.2016, the jurisdiction to issue show cause notices and adjudicate the matter has been vested in the jurisdictional customs officers. As the administrative head of the SEZ, who is empowered to take all steps to discharge his functions under the SEZ Act under section 12(1) of the SEZ Act, the Development Commissioner issued the show cause notices. Section 30 of the SEZ Act was in the statute when the show cause notices were issued. If the contention of the petitioner on jurisdiction were to be accepted, neither the Development Commissioner nor customs officers could have issued the show cause notices prior to 5.08.2016. This contention cannot be countenanced. Hence, all the jurisdictional objections are rejected and the findings in the impugned OIOs thereon are upheld. Interference with the impugned orders is called for because the written submissions of the respondents were not provided to the petitioner before the conclusion of proceedings and that the impugned orders are no more than a minor modification of such written submissions - As regards the first of these aspects, written submissions are intended to capture the oral arguments in writing so as to facilitate the adjudicator to consider the arguments while issuing the order of adjudication. Since written submissions, unlike pleadings, do not require a response from the counter party, the alleged failure to provide a copy of the written submissions to the petitioner in time for the petitioner to respond thereto is immaterial. On examining the impugned orders closely, find that the discussion and analysis is elaborate and such orders are not vitiated on the ground of some commonality of language between the written submissions of the respondents and the impugned orders. Applicability of ADD to the subject goods - whether the goods fall within the scope of the ADD Notification? - Determination whether the relevant goods were stand-alone components or SDH equipment in some form is a determination involving disputed questions of fact. Likewise, the determination as to whether ADD was imposed because the business model of the petitioner involved circumvention of the ADD Notification would also involve detailed examination of disputed questions of fact. Such determinations would further entail detailed consideration of evidence. In the impugned OIOs, there is detailed consideration and analysis followed by conclusions. Hence, it is inappropriate to consider and determine this issue in exercise of summary and discretionary jurisdiction under Article 226 especially when a statutory remedy is prescribed. Since interim protection was granted when these writ petitions were filed and these cases were pending for about 7 years, it is just and necessary to grant leave to the petitioner to file a statutory appeal on merits within a specified time line.
Issues Involved:
1. Imposition of Anti-Dumping Duty (ADD) for the period 08.12.2014 to 31.08.2015. 2. Jurisdiction of the Development Commissioner to issue Show Cause Notices (SCNs). 3. Applicability of ADD to goods cleared from a Special Economic Zone (SEZ) to a Domestic Tariff Area (DTA). 4. Compliance with principles of natural justice in the adjudication process. 5. Determination of whether goods fall within the scope of the ADD Notification. Detailed Analysis: 1. Imposition of Anti-Dumping Duty (ADD) for the period 08.12.2014 to 31.08.2015: The court examined whether the imposition of ADD for this period violated the common order dated 06.10.2017. It was noted that the ADD Notification's validity expired on 07.12.2014. The Second ADD Notification attempted to extend this validity post-expiry, which was deemed unsustainable by the Supreme Court in Kumho Petrochemicals. Consequently, the demand for ADD for this period was held to be without jurisdiction and could not be sustained. 2. Jurisdiction of the Development Commissioner to issue SCNs: The petitioner contended that the Development Commissioner lacked jurisdiction to issue SCNs due to amendments in the SEZ Act and Rules effective from 05.08.2016, which empowered jurisdictional customs officers. The court found that the SEZ Act envisages the imposition of ADD on goods removed from SEZ to DTA, and the Development Commissioner, as the administrative head, had the authority to issue SCNs. The court upheld the findings in the impugned orders, rejecting the jurisdictional objections. 3. Applicability of ADD to goods cleared from SEZ to DTA: The petitioner argued that clearance from SEZ to DTA does not constitute an import under the SEZ Act or FTDRA. However, section 30 of the SEZ Act provides for the imposition of customs duties, including ADD, on goods removed from SEZ to DTA as if imported. The court concluded that the SEZ Act clearly provides for ADD imposition on such goods, and the objections were rejected. 4. Compliance with principles of natural justice: The petitioner claimed that the respondents' written submissions were not provided before the conclusion of proceedings, and the impugned orders mirrored these submissions. The court found that written submissions are intended to capture oral arguments and do not require a response. The impugned orders were found to be elaborate and not vitiated by commonality with the respondents' submissions. 5. Determination of whether goods fall within the scope of the ADD Notification: The determination of whether goods were stand-alone components or SDH equipment involves disputed questions of fact. The court noted that such determinations require detailed examination of evidence and are inappropriate for summary jurisdiction under Article 226. The petitioner was granted leave to file a statutory appeal on merits. Conclusion: (i) The impugned OIO No.689/2017-AIR dated 30.12.2017 was set aside, allowing respondents to initiate action for the period 14.11.2014 to 7.12.2014. (ii) Jurisdictional objections were rejected. (iii) Petitioner granted leave to file a statutory appeal against OIO No.688/2017-AIR within 30 days. (iv) Both writ petitions were disposed of without costs. (v) Miscellaneous petitions were closed.
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