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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 ..... hether the levy of anti-dumping duty is justified in the light of the Board Circular No. 106/95-Cus., dated 11-10-1995 which grants duty draw back and/or refund of anti-dumping duty in respect of imported inputs which were actually used in the goods exported? 3. Whether the Tribunal was justified in disposing the appeal without considering the ROM application filed by the appellant ? 4. Whether the Tribunal was justified in dismissing the appeal solely based on para 13 of the Third Member's order, when the Third Member actually declined to go into the arguments raised by the appellant on the ground that the ROM application filed by the appellant was pending before the Division Bench which passed the dissent order? 5. Whether the preliminary findings of the designated authority levying anti-dumping duty for the period in investigation between 1-4-1995 to 30-9-1995 would have any relevance for the imports made during the period in dispute (28-10-1996 to 25-2-1997)?" 2. Apart from the above Civil Miscellaneous Appeal, there are two Writ Petitions in the list viz., W.P. Nos. 21054 of 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation. Aggrieved by the levy, the assessee preferred appeals before the Commissioner (Appeals), who confirmed the demand in respect of six bills of entry. He, however, allowed the duty exemption in respect of one bill of entry dated 30-4-1997, made after the issue of Notification No. 41 of 1997, revoking the anti dumping duty liability and directed the Designated Authority to consider the prayer for drawback. The assessee preferred appeals before the CESTAT. while the Judicial Member agreed with the assessee, on account of the order passed withdrawing the earlier notifications, the Technical Member, however, differed. This resulted in the case being referred to a third Member for a decision. The third Member agreed with the Technical Member. Thus, the levy was confirmed. Aggrieved by the same, the assessee has preferred the appeal before this Court. 4. Leaving aside the proceedings before the Tribunal for a moment, immediately after the preliminary proceedings, the assessee filed a reply on 4-10-1996, reiterating its stand and pleaded for dropping the proceedings. By Notification No. 27/97-Cus., dated 1-4-1997, the Designated Authority continued the imposition of anti- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 case on a wrongful assumption that their case is covered by Section 18(4) of the Customs Tariff Act and Rule 21(3) of the Customs Tariff (Determination of Injury) Rules, when the withdrawal is conditional, the petitioner is not entitled to refund of the duty levied. The withdrawal of anti-dumping duty with effect from 22-1-2001 would, in no way, affect the levy and collection of anti-dumping duty and the earlier notifications. So too, any duty not levied or short-levied would be recoverable as per the Notifications, which were ruling the field till 2001. In the circumstances, the question of refund or dropping of the proceedings, did not arise. 7. It is also seen that the petitioner has also challenged the applicability and levy of anti-dumping duty before this Court in W.P. No. 12403 of 1998. 8. Learned Senior Counsel appearing for the appellant/assessee pointed out that going by the Exim Policy 1992-97, when the imports are under actual user's licence and the assessee had already performed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;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, apart from preserving the right of the Government, to take action in such of those acts in those cases, where there was an omission to levy duty. It must be pointed out herein that the learned Standing Counsel fairly brought to the notice of this Court the decision of the Tribunal in the case of Rao Insulating Company Limited v. Commissioner of Customs, Bangalore reported in 2007 (213) E.L.T. 101 (Tri. Bang.), wherein, the Tribunal had accepted the plea of the assessee based on Notification No. 25/04-Cus., dated 22-1-2004 that the words "except as respects things done or omitted to be done before such rescission" cannot authorise or preserve the imposition of anti-dumping duty. The Tribunal further pointed out that on a similar issue, the Chennai Customs have granted refund order, which has been accepted by the Department that the Notification could not protect acts, which are done in imposition of anti-dumping duty, etc. 12. We agree with the submission of the learned Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arket, 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 to not only the provisions of the Act, but would also be in violation of the Constitutional mandate. Thus going by the above-said provisions, it is clear that the latter portion of the Notification, preserving the rights of the Government in respect of the duty imposed or to impose duty in cases where it was omitted to be done before the rescission of the earlier notification under Notification No. 5/2001 dated 22-1-2001, is contrary to the Scheme of the Anti- dumping laws and violative of Articles 14 and 265 of the Constitution of India. 15. At this juncture, we feel, it would be appropriate to extract the portion of Notification No. 5/2001-Cus., dated 22-1-2001, complained of by the assessee, which reads as follows : "Now, therefore, in exercise of powers conferred by sub-section (1), read with sub-section (5) of section 9A of the said Customs Tariff Act, the Central Government hereby rescinds the notification of the Government of India in the Ministry of Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 of the Government, in general. As enunciated in the Policy, given the objective as stated above, the various Wings of the Government must act with a shared vision and commitment to facilitate better export promotion. The latter portion of the Notification, which is under challenge before this Court, clearly demands the attention of the respondents to the policy of the Government, to give a full thrust to it and not to whittle it down on any assumed interest in the name of implementing the Anti-Dumping Laws. Hence the import of raw materials for export under QBAL Scheme cannot be subjected to anti-dumping duty. 19. In the light of the decision that we have taken in the writ Petition challenging the latter portion of the Notification, 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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