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TMI Blog2009 (7) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents after expiry of Annexure A notification. - 15, 16, 17 & 24 of 2006 - - - Dated:- 15-7-2009 - C.N. Ramachandran Nair and C.K. Abdul Rehim, JJ. S/Shri John Varghese, A.S.G. and Abraham Thomas, Counsel, for the Petitioner. Shri Joseph Kodiyanthara, for the Respondent. [Judgment per : C.N. Ramachandran Nair, J.]. - The question raised in the connected appeals filed by the Department is whether respondents are liable to pay anti-dumping duty on the import of Compact Florescent Lamps (CFL) from the Peoples Republic of China and Hong Kong based on Annexure B notification issued by the Central Government and produced in Customs Appeal No. 7 of 2009. Admittedly provisional anti-dumping duty was introduced on the items imported from China and Hong Kong vide Annexure A notification dated 21-12-2001 issued under sub-section (2) of Section 9A of the Customs Tariff Act read with Rules 13 and 20 of the Customs Tariff (Identification, Assessment, and Collection of Anti-dumping Duty on Dumped Articles for Determination of Injury) Rules, 1995. Imports were made by the respondents after expiry of six months from the date of issue of Annexure A providing for levy of provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -dumping duty is levied with effect from 21-12-2001 which means that all imports of items of CFL made from China and Hong Kong from this date will attract anti-dumping duty. The Tribunal has no power to go into the validity of Annexure B notification providing for anti-dumping duty with effect from the date of introduction of provisional duty under Annexure A notification, nor have they found Annexure B notification invalid. We do not know then, on what basis the Tribunal has held that anti-dumping duty cannot be levied after expiry of Annexure A notification, which is the one providing for provisional duty pending final orders in the investigation initiated under the Anti-dumping Rules. The order of the Tribunal is therefore contrary to Annexure B notification which is the basis of levy. We are of the view that the Tribunal committed the mistake probably by assuming that levy is under Annexure A notification which provides for provisional duty and since it had expired, the Tribunal held that anti-dumping duty cannot be levied on the importers for imports made after expiry of Annexure A notification. We are sure that if the Tribunal had considered provisions of Annexure B, the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of anti-dumping duty are not permissible under Annexure B notification, we have to necessarily consider whether Annexure B notification is consistent with the scheme of levy under Section 9A of the Act read with Rule 20 and other provisions of the Anti-dumping Rules. For easy reference we extract hereunder Section 9A(1), (2) and (5) of the Customs Tariff Act and Rules 20 and 21 of the Anti-dumping Rules : Section 9A. Anti-dumping duty on dumped articles. - (1) Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the official gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation -….. (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts which have entered for home consumption before the violation of terms of such undertaking. Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 21. Refund of duty. - (1) If the anti-dumping duty imposed by the Central Government on the basis of the final findings of the investigation conducted by the designatred authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. (2) If the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. (3) If the provisional duty imposed by the central Government is withdrawn in accordance with the provisions of sub-rule (4) of rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the importer. It is clear from the above provisions that pending enquiry and orders, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umping duty are not covered by Rule 21 at all. Therefore we are of the view that Annexure B notification issued giving effect to it's provisions from the date of levy of provisional duty under Annexure A notification is consistent with the provisions of the Act and Rules. In other words, once provisional anti-dumping duty is levied for any goods, any subsequent import of such goods will attract anti-dumping duty if final orders provide for levy with effect from the date of provisional order. We are therefore of the view that the Tribunal went wrong in holding that anti-dumping duty cannot be levied or collected from the respondents after expiry of Annexure A notification. Levy of anti-dumping duty is permissible under Annexure B notification which is the final notification in force based on which duty is levied. We endorse the view expressed by the Principal Bench of the Tribunal in the decision above referred as correct. 7. Consequently all the appeals are allowed vacating the orders of the Tribunal and that of the first appellate authority and by restoring levy and demand of anti-dumping duty on the respondents under Annexure B, the final notification. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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