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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 ..... ecom services in various circles across India. It is also a consumer of various telecom transmission equipments for use in its telecom network. The first respondent has issued the subject notification and the second respondent is the Designated Authority and rather a Directorate General of AntiDumping and Allied Duties. The challenge in this Writ Petition arises in the backdrop of antidumping measures evolved by the State from time to time. The dumping of goods in India has been termed as counter productive and affects the Indian economy vitally. It causes material injury to the domestic industries and that is how in terms of Section 9A of the Customs Tariff Act read with Anti Dumping Rules, the second respondent investigates the cases of dumping of goods in India unlawfully and illegally and seeks to recover antidumping duty. 4. In the present case, we are concerned with the antidumping duty on Synchronous Digital Hierarchy transmission equipments (for short termed as 'SDH' transmission equipment). In terms of certain investigation carried out and preliminary findings, a notification came to be issued recommending imposition of antidumping duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Technologies Ltd. 266% % of CIF Value of Imports 2 851762 Or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR China PR Alcatel-Lucent Shanghai Bell Co. Ltd. Alcatel-Lucent Shanghai Bell Co. Ltd. 45% % of CIF Value of Imports 3 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR China PR M/S ZTE Corporation M/S ZTE Corporation 36% % of CIF Value of Imports 4 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR China PR M/S Hangzhou ECI Telecommunication Co. Ltd M/S ECI Telecom Ltd., Israel 7% % of CIF Value of Imports 5 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR China PR Any other combination other than as at Sl. 1,2,3 and 4 above Any 266% % of CIF Value of Imports 6 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment as specified in Notes 1 to 5. China PR Any other than China PR Any Any 266% % of CIF Value of Imports 7 851762 or 851770 Synchronous Digital Hierarchy Transmission Equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Similarly when eventual Broadband or Cellular equipment is imported as a part of the SDH equipment, the antidumping duty shall be payable only on the SDH portion of the imports. Note 4. PDH, CWDM, DWDM, Microwave systems, GPON ,DSLAM, MSAN, BITS, Routers, PTN, PDSN, SGSN, MGW, BTS, BSC, MSC, ONT, HLR, HSS and MRP being nonSDH in any of its form are outside the scope of product under consideration and therefore not subject to levy of antidumping duty. Note 5. Microwaves Radio Terminals which could have an STM1 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 antidumping duty. 2. The antidumping 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 exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef cannot be claimed before any forum, save and except this Court and by way of the present Writ Petition. 7. It is argued that antidumping duty can be imposed in India under the provisions of Section 9A of the Customs Tariff Act,1975. It can be imposed at the behest of Indian Manufacturers (domestic industry) when there is import of 'like article' (as manufactured by the complainant 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 indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radictory to the prior Notes and particularly 'Note 1'. That stipulates not levying any such duty on the components or parts of SDH imported on standalone basis. Then, the components or parts of SDH should not be suffered antidumping duty. However, without the precondition being satisfied, the Note is being incorporated by the Revenue to the detriment of the petitioner's interest, is the submission. It is, then, urged 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 respondentsRevenue 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject Notification and the Notes below the same.The petitioner is primarily raising the issue of construction and interpretation of the Notes and the Notification as a whole.The petitioner has placed their version and interpretation on the Notification and the Notes below the same. The impugned Note 3 is also sought to be interpreted by them and in the backdrop of a larger picture.The petitioner urges that antidumping duty cannot be imposed and recovered unless all preconditions 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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