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TMI Blog2011 (4) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... ttle it down on any assumed interest in the name of implementing the Anti-Dumping Laws - Appeal is allowed - 3727 of 2004 - - - Dated:- 8-4-2011 - Chitra Venkataraman and P.P.S. Janarathana Raja, JJ. REPRESENTED BY : S/Shri Arvind P. Datar Sr. Counsel for C. Saravanan, for the Appellant/Petitioner. Shri S. Udayakumar, SCGSC, for the Respondent. [Judgment per : Chitra Venkataraman, J.]. As against the order of Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai dated 18-8-2004 [2004 (178) E.L.T. 874 (Tribunal)] on a difference of opinion between two Members viz., the Judicial Member, who was dissenting with the Department and the Third Member agreeing with the Department on the levy of Anti-Dumping Duty, the appellant/assessee has come up before this Court on appeal in C.M.A. No. 3727 of 2004, raising the following substantial questions of law :- 1. Whether the levy of anti-dumping duty on imports made under a Quantity Base Advance Licence (QBAL) are justified especially in the light of Notification No. 41/97-Cus., dated 30-4-1997? 2. Whether the levy of anti-dumping duty is justified in the light of the Board Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Paragraphs 47 and 48 of Chapter VII. In the meantime, in exercise of the powers conferred under Section 9A of the Customs Tariff Act, 1975, read with Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, framed under sub-section (6) of Section 9A and sub-section (2) of Section 9B of the Customs Tariff Act, 1975, the Designated Authority initiated investigation proceedings on the alleged dumping of eight Hydroxy Quinoline, imported from the People s Republic of China, based on a complaint filed by M/s. West Bengal Pharmaceuticals and Phytochemical Development Corporation Ltd., Calcutta. Thus, based on the enquiry initiated on 4-3-1996, provisional demand was made on the assessee, calling upon the assessee to pay anti-dumping duty in terms of Notification No. 80/96-Cus., dated 16-10-1996 under six different orders, issued by the Ministry of Finance. The assessee states that it was the only one company which participated in the investigation. Aggrieved by the levy, the assessee preferred appeals before the Commissioner (Appeals), who confirmed the demand in respect of six bills of entry. He, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notifications, Notification No. 5/2001 dated 22-1-2001 protected the action already taken or omitted to be done before such rescission. Aggrieved by the latter portion of the Notification, the petitioner has preferred W.P. No. 21054 of 2001, contending that once a finding had come that there was no liability to pay anti-dumping duty, there being no violation of the Anti-Dumping laws, the question of retaining the duty levied, did not arise. The petitioner contends that Notification No. 5/2001, containing a saving clause that things done or omitted to be done before such rescission, is contrary to the provisions of Anti-Dumping Rules, and in particular, to Rule 21(3). The petitioner contends that in terms of Rule 13 of the Anti-Dumping Rules, the provisional duty could remain for a period of six months, which may be extended for a further period as provided for under Rule 14 of the Anti-Dumping Rules. The Notification containing the saving clause is contrary to the provisions of the Act and violative of Article 265 of the Constitution of India. 6. On notice, the Revenue has filed a counter in the writ petition, supporting the Notification, that the petitioner had projected the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State; that on performance of an export obligation, the assessee was entitled to refund of duty paid on the export of goods. 10. Learned Senior Counsel pointed out that given the object of the exim Policy, the licence granted to the assessee and in the background of the review notification that there is no dumping of goods into the country, the latter portion of Notification No. 5/2001 dated 22-1-2001, preserving those acts done, or protecting the rights of the Government to do, cannot survive under any of the provisions of the Anti-Dumping Laws. Thus, the latter portion in Notification No. 5/2001 dated 22-1-2001 goes against the very scheme of the anti-dumping laws; hence, beyond the purview of the Government to preserve any such authority. Thus, when the anti-dumping provisions are not available herein, on facts, the Notification preserving such authority is contrary to Article 14 of the Constitution of India. Hence, the Notification, to that extent, is liable to be quashed. 11. Per contra, learned Standing counsel appearing for the Revenue pointed out that Notification No. 5/2001 dated 22-1-2001 has only a prospective effect, in that, it seeks to preserve all acts done, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisional duty imposed within 45 days of the publication of the final finding by the Designated Authority, under Rule 17 of the Rules. A reading of the above Rules leaves no manner of doubt that on the finding thus given by the Designated Authority, the State cannot proceed further to preserve any order or reserve any jurisdiction on an authority, to protect any act done, either provisionally or otherwise or confer authority to assume jurisdiction to make a fresh levy. 14. In this regard, Rule 19 assumes significance. It states that any provisional duty imposed under Rule 13 of the Rules and anti-dumping duty imposed under Rule 18 of the Rules, shall be on a non-discriminatory basis and applicable to all imports of such articles from whatever sources found dumped. Thus, on a reading of Rules 17, 18 and 19 of the Rules, it is clear that the assumption of authority to levy anti-dumping duty, rests on a positive finding on dumping, which is injurious to the local market, and that, once the finding is otherwise, the question of either maintaining a levy or imposing a fresh one, does not arise. In other words, the question of assuming jurisdiction in such cases would be contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws. In the circumstances, we have no hesitation in agreeing with the learned Senior Counsel appearing for the appellant that the levy, as such, cannot be made in the light of the findings given in Notification No. 5/2001 dated 22-1-2001. 17. In the light of the decision thus arrived at, we do not think that it is necessary for us to consider the other issues raised, particularly with reference to the compliance of the actual user licence conditions and the duty exemption scheme, vis-a-vis, the anti dumping laws. Since the entire action is based on Notification No. 5/2001 dated 22-1-2001, we feel that it is suffice that the other issues need not be gone into herein. 18. It must be noted herein that the purpose of introducing the EXIM policy is to accelerate the economic growth to derive maximum benefits from the expanding global market opportunities. In giving a stimulus to sustain the economic growth, the Government thought it fit to provide access to essential raw materials, intermediates, components, consumables and capital goods required for promoting production. The object of this policy, hence, could be achieved only through the co-ordinated efforts of all the Departments ..... 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