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TMI Blog2015 (9) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... ition and the cases in which same cannot be levied, imposed and recovered. - it is not necessary to express any opinion on the rival contentions. More so, when Mr. Jetly, on instructions, assures that the Authority adjudicating the show cause notice will pass an order by application of independent mind, uninfluenced by the version placed in the affidavit filed by Dr. Sumit Garg, Assistant Director of B¬Cell, Directorate of Revenue Intelligence, Mumbai Zonal Unit, Mumbai. - petition disposed of. - Writ Petition No.3079 of 2014 - - - Dated:- 13-8-2015 - S.C. Dharmadhikari G.S. Kulkarni, JJ. For the Petitioner : Mr. Rafique Dada, Senior Advocate with Mr. Rohan Shah and Mr. Anay Bannatti and Ms. Sweta Rajan i/b. Economic Laws Practice For the Respondent : Mr. Pradeep S. Jetly ORDER P.C. : 1. By this petition under Article 226 of the Constitution of India, the petitioner is seeking a declaration that Note 3 of the Notification No.125/2010 Cus. dated 16.12.2010 is ultra vires to the Customs Act,1962 and the Customs Tariff Act. The petitioner is also seeking to quash and set aside this Note and thereafter a Writ of Mandamus directing the respondents not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 9A of the said Customs Tariff Act and rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti dumping Duty on Dumped Articles and for Determination of Injury) Rules,1995, the Central Government, on the basis of the aforesaid final findings of the designated authority, hereby imposes on the subject goods, the description of which is specified in column (3) of the Table below, falling under sub heading of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), originating in the country as specified in the corresponding entry in column (4), and produced by the producers as specified in the corresponding entry in column (6), when exported from the country as specified in the corresponding entry in column (5), by the exporters as specified in the corresponding entry in column (7), and imported into India, an anti dumping duty at the rate equal to the amount indicated in the corresponding entry in column (8), and per unit of measurement as specified in the corresponding entry in column (9), of the said Table. TABLE S.No Subheading Description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any Any 266% % of CIF Value of Imports 7 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. Any China PR Any Any 266% % of CIF Value of Imports 8 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. Israel Israel M/S ECI Telecom Ltd., Israel M/S ECI Telecom Ltd., Israel 3% % of CIF Value of Imports 9 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. Israel Israel Any other than combination as at Sr. No.8 above Any 70% % of CIF Value of Imports 10 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f product under consideration and therefore not subject to levy of anti dumping duty. Note 5. Microwaves Radio Terminals which could have an STM 1 interface to the SDH transmission equipment and act as a physical media to enable the connectivity between the radio and the SDH equipment are outside the purview of payment of anti dumping duty. 2. The anti dumping duty imposed shall be levied for a period of five years (unless revoked, superseded or amended earlier) from the date of imposition of the provisional anti dumping duty, that is, the 8th December, 2009 for the imports of the subject goods originating in or exported from, China PR and Israel and the antidumping duty imposed shall be payable in Indian currency. Explanation : For the purposes of this notification, rate of exchange applicable for the purposes of calculation of such antidumping duty shall be the rate which is specified in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), issued from time to time, in exercise of the powers conferred by section 14 of the Customs Act, 1962, (52 of 1962), and the relevant date for the determination of the rate of exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domestic industry) from a specified country at a price lower than the price at which the like article is sold in that exporting country, and where such import causes injury to the domestic manufacturers. Before this duty can be imposed and recovered, it must be decided as to whether it is in relation to 'like article' imported from a specified country. No antidumping duty recovery proceedings can be brought qua a product not manufactured by the domestic industry. The import of the 'like article' from the specified country must be dumped namely sold in that country at a higher price than the sale price in India. There must be material injury to the domestic industry and that such duty cannot be levied and imposed in respect of any item that the Indian complainant industry itself imports from the relevant exporting jurisdiction. In the present case, it is clear that the parts and components of SDH are themselves imported by the complainant industry from China, but are routed through Thailand for some minimal work, to avoid this provision of anti dumping law. 8. Therefore, anti dumping duty cannot be imposed and recovered unless there is a specific satisfaction that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that even if the petitioner was to raise such contentions before the Adjudicating Authority and in further proceedings before the Tribunal, each one of them is a creature of the Customs Act and, therefore, would not be in a position to deal with the arguments particularly on vires or illegality or validity of the Notification itself. They would not be in a position to strike down any part of the Notification or the Note or part of such Note 3. In the circumstances, this Court should entertain this Writ Petition. 10. On the other hand Mr. Jetly, learned Counsel appearing on behalf of the respondents Revenue submits that in the affidavit in reply it is clearly indicated as to how the petition is misconceived. The petitioner does not wish to appear before the Adjudicating Authority and answer and reply the allegations in the show cause notice by facing the adjudication itself. The petitioner wants to short circuit it and when it is aware that in the earlier round before the Tribunal it had raised similar contentions. The Tribunal accepted them and, then, remanded the case for denovo consideration. Thereafter an order has been passed. However, no steps were taken by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed and recovered unless all pre conditions are satisfied. Secondly, the equipment as a whole comprises of several parts and components and has to be viewed accordingly. If the components and parts themselves are imported on standalone basis, then, the same are out of the purview of this duty, is equally its interpretation. This is a matter which involves the acceptance or otherwise version or interpretation of the petitioner and in relation to the duty, its levy, imposition and the cases in which same cannot be levied, imposed and recovered. That is how the petitioner intends to meet the allegations in the show cause notice and which is yet to be adjudicated. We are of the opinion that in the event such an interpretation placed by the petitioner and presently controverted by the respondents, is not accepted and orders adverse to the interest of the petitioner are passed in the adjudication proceedings, then, in challenging the same, appropriate contentions can be raised by the petitioner on the interpretation of the Notification and the Notes below the same and construction thereof. Similarly, if the version of the respondent is accepted and adverse to the interest of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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