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TMI Blog2013 (1) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional anti-dumping duty was also levied on the basis of Notification No.52/2006-Cus, dated 31.5.2006 . The above said notification was issued based on the preliminary findings of the Designated Authority, namely the Director General of Anti-Dumping. The relevant portion of the said notification reads as under: "Notification: 52/2006-Cus. dated 31-May-2006 Anti-dumping duty on Silk fabrics of weight 20 to 100 grams per meter, originating in, or exported from People's Republic of China Whereas in the matter of import of silk fabrics of weight 20 to 100 grams per meter falling under heading 5007 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), (hereinafter referred to as the subject goods), originating in or exported from People s Republic of China (hereinafter referred to as the subject country), the designated authority in its preliminary findings vide notification No. 14/20/2004-DGAD, dated the 27th April 2006, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 28th April 2006, has come to the conclusion that (i) the subject goods have been exported to India from the subject country below their normal value; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on the subject goods, vide notification of the Government of India in the Ministry of Finance (Department of Revenue), No.52/2006 Customs, dated the 31st May, 2006, published in Part II, Section 3, Sub-section (i) of the Gazette of India, Extraordinary, vide G.S.R. No. 329(E), dated the 31st May, 2006; And whereas the designated authority in its final findings vide notification No.14/20/2004 -DGAD, dated the 15th November, 2006, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 16th November, 2006, read with corrigendum No.14/20/2004-DGAD, dated 14th December, 2006, published in the Gazette of India, Extraordinary, Part I, section 1, dated the 15th December, has come to the conclusion that (a) the subject goods have been exported to India from the subject country below its normal value; (b) the domestic industry has suffered material injury; (c) the injury has been caused by the dumped imports from the subject country; and has recommended the imposition of definitive anti-dumping duty on imports of the subject goods originating in, or exported from, the subject country; Now, therefore, in exercise of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms [2004 (163) ELT A116(SC)] and M/s.Priya Blue Industries Vs. Commissioner of Customs [2004 (172) ELT 145 (SC)]. Refund will arise only if such an order is lawfully modified or revised in your favour. In view of the above, the refund claim filed by you is not admitted being pre-mature. You are advised to approach the appropriate authority to get the bill of entry re-assessed appropriately or an order from the appellate authority. You will have an option of filing a fresh claim, along with original documents, after getting the assessment order lawfully modified to your benefit whereupon the refund claims will be examined on merits. In view of the above, your refund claim is returned herewith being pre-mature." and this order as above is under challenge before this Court. 3. Heard Mr.S.Krishnanadh, learned counsel for the petitioner and Mr.Mahadevan, learned Central Government Standing Counsel appearing for the respondents. 4. Since the issue involved in this writ petition relates to the interpretation of the provisions of the Customs Tariff Act, 1975 and the Customs Act, 1962, the Court is not inclined to grant further time to the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- (a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section(6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of reassessing the bill of entry which has been assessed on the basis of provisional anti-dumping duty. What has been imposed is a provisional anti-dumping duty in terms of Section 9A(1) of the Customs Tariff Act, 1975 and the Bill of Entry has been finally assessed. The refund becomes automatic after the final order is passed in terms of Section 9A(2) of the Customs Tariff Act, 1975 and, therefore, the refund as contemplated under the provisions of the Customs Tariff Act, 1975 will have to be processed as such, as the duty becomes refundable if it stands reduced in the final notification as in the present case. There is no necessity for filing an appeal against the assessment or reassessment, as the importer becomes entitled to refund consequent to the final notification issued in terms of Section 9A(2) of the Customs Tariff Act, 1975. All that is required to be done is claim refund of excess anti-dumping duty and it shall be made as per the mandate of Section 9A(2) of the Customs Tariff Act, 1975 if and when an application for refund is made as per procedure set out under the Customs Act, 1962. 8. The provisions of the Customs Tariff Act, 1975 provide for imposition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal held that the assessment order under which duty was paid, having not been challenged, has become final. This was upheld by the Supreme Court in M/s.Super Cassette Industries Vs. Commissioner of Customs [2004 (163) ELT A116(SC)]. The said issue is factually different from the issue involved in the case on hand, as the Bill of Entry has been assessed based on provisional anti-dumping duty, which was finalized by issuance of subsequent notification and both the department as well as the petitioner are very clear that provisional anti-dumping duty was payable at the time of clearance, subject to finalization of the anti-dumping duty either way. Therefore, the facts of the present case are different from the facts of the case in M/s.Super Cassette Industries Vs. Commissioner of Customs [2004 (163) ELT A116(SC)]. 10. Similarly, in M/s.Priya Blue Industries Vs. Commissioner of Customs [2004 (172) ELT 145 (SC)], the petitioner therein imported a ship for breaking purposes. That was assessed and cleared by payment of certain duty under protest and thereafter refund was claimed on the ground that duty had been wrongly levied. The refund was rejected and confirmed before the Appe ..... 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