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TMI Blog2017 (3) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... that the relevant provisions of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 renders it against authority of law to collect ADD for the time that a notification provisional or final-did not exist. Appeal allowed - decided in favor of appellant. - E/41901/2015-DB - 42237/2016 - Dated:- 22-7-2016 - Shri P K Choudhary, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri S M Venkataraman, Advocate for the appellant Shri A Cletus, Authorised Representative for the respondent Per: C J Mathew: M/s Huawei Telecommunication (India) Co Pvt Ltd, the appellant in this dispute, faces recovery of anti-dumping duty on procurement of 'synchronous digital hierarchy (SDH)' equipment from M/s Flextronics Technology India Pvt Ltd located in a Special Economic Zone in Tamil Nadu. Initially, the 'anti-dumping duty' had been imposed provisionally with effect from 8 th December 2009 vide notification no. 132/2009-Cus of the same date. The provisional imposition was converted into a final levy vide notification no. 125/2010-Cus dated 16 th December 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Customs Act, 1962 and that the notification for imposition of 'anti-dumping duty' is applicable only on goods which are either produced in China or originated in China whereas the present consignments are manufactured in India by a unit established under the Special Economic Zone Act, 2005. 4. Learned Counsel for appellant relies upon the provisions of Special Economic Zones Act, 2005 and Rules, the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 and the Customs Tariff Act, 1975 to reinforce their claim of being excluded from anti-dumping levy. Reliance was also placed on the decision of the Hon'ble Supreme Court in Commissioner of Customs, Bangalore v. G M Exports [2015 (324) ELT 209 (SC)] holding that the relevant provisions of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 renders it against authority of law to collect (anti-dumping duty' for the time that a notification provisional or final - did not exist. Learned Counsel further relies upon the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other for the time being in force, on goods exported from, or services provided, from a Special Economic Zone or from a Unit, to anyplace outside India; (c) exemption from any duly of excise, under [he Central Excise Act, 1944 (1 of 1944) or the Central Excise Tariff Act, 1985 (5 of 1986) or any other law for the lime being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) drawback or such other benefits as may be admissible from time to lime on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer or Unit to carry on the authorised operations in a Special Economic Zone; (f) exemption from the securities transaction tax leviable under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; as the notification imposing the provisional levy had ceased to be in force. After the issue of notification imposing the final levy in circumstances narrated supra, the appellant was served with the demand for the non-payment of duty by the authorized officer. Undoubtedly rule 47(4) of Special Economic Zones Rules, 2006 requires that valuation and assessment for the purposes of section 30 shall be as prescribed in the Customs Act, 1962 and the rules framed thereunder. With the charging provisions embodied in the Special Economic Zones Act, 2005 prevailing over the provisions of Customs Act, 1962 and a detailed procedure prescribed in Special Economic Zones Rules, 2006, the applicability of Customs Act, 1962 and rules thereunder is limited to the determination of rate of duty, applicability of exemption notifications and valuation of the goods which are not provided for, but referred to, in the Special Economic Zones Act, 2005. Though similarly the Special Economic Zones Act, 2005 has no provision for demand of duty that was short-paid or not paid at the time of clearance, powers of recovery under Customs Act, 1962 can be exercised only by an officer of Customs. Authorized offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding India, to be subject to the levy does not find favour. Yet, there is the deliberate inclusion of 'anti-dumping' duty in section 30 of Special Economic Zones Act, 2005 which operates in Indian territory. That is neither an anomaly nor a superfluity. 10. The main objective of units in special economic zones is the manufacture of goods, or rendering of services, for export. Manufactured goods will not find themselves subject to 'anti-dumping duty'. That is in line with the decision of the 'Tribunal in re Ram Krishna Exports. We are not overly concerned with services which are outside the ambit of this levy except that 'trading' is one of the designated services in the scheme of the Special Economic Zones Act, 2005. Economic necessity may persuade trading entities to clear goods into the domestic tariff area (DTA). Units in 'free trade and warehousing zones' (FTWZ) certainly do so. Likewise, economic compulsions may warrant clearances, as such, of goods imported by manufacturing units into the domestic tariff area (DTA) during the functional existence of the units or upon exit from special economic zones. The privilege of exemption from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective imposition prior to the imposition of a provisional duty. It will immediately he noticed that the subject matter of sub-clause (a) does not purport to be the imposition of an anti-dumping duty with retrospective effect. This is because it seeks to give effect to clause 10.2 of the WTO Agreement. As has been argued by learned counsel on both sides, the key to the understanding of the import of sub-clause (a) is the expression where a provisional duty has been levied.... Obviously, the word levied has to be read as levied in accordance with Rule 13 which, as its marginal note indicates, provides' for the 'levy of provisional duty. Once this is clear and the word levied is to be understood as levied under Rule 13, the second proviso of Rule 13 gets attracted, and under this proviso such levy cannot be for a period exceeding 6 months (on facts in these cases, such period has not in fact been extended beyond 6 months). Thus, it is clear that all that sub-rule (2)(a) does is to enable the levy of a final anti-dumping duty from the date of imposition of a provisional duty so as to convert the provisional measure into a final measure, or so as to take within its k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner that it is ultra vires the parent statute. xxxx 43. The effect of Rule 21 on the aforesaid construction of Rule 20 now needs to be adverted to. Rule 21, in turn, is made to carry out what is in clause 10.3 of the WTO Agreement. Rule 21(2) echoes what is already found in Section 9A(2). If provisional anti-dumping duly is found to be higher than the final anti-dumping duly, the differential shall be refunded to the importer. But sub-rule (1) goes a step further and stales that if the anti-dumping duly finally imposed is higher than the provisional duly already imposed and collected, the differential shall not be collected from the importer. 44. It is obvious that This Rule has been framed in the interest of international trade. It is well known that export contracts are entered into long before anti-dumping duties may be imposed, and in the interests of international trade, the importer should not be put to a loss in case a final duty happens to be higher than the provisional duty already imposed. The delicate balancing act between protection of domestic industry and the hardship caused in the course of international trade has thus been tilled in favour of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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