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TMI Blog2017 (10) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in favor of the petitioner. Whether the impugned show cause notice, insofar it relates to the levy of ADD based on the amendment Notification, which was issued after the lapse of principal Notification is valid and proper? - Held that: - the amendment Notification, dated 05.01.2015, having been issued after the lapse of principal Notification No.125 of 2010, dated 16.12.2010, the show cause notice is not sustainable - the demand of ADD during the period of review is not automatic, but, has to be imposed before the expiry of five years, which is life of the Notification, imposing ADD. As noticed above, the Notification imposing ADD, dated 16.12.2010 had lapsed on 07.12.2014. Therefore, the extension Notification, dated 05.01.2015, issued after the lapse of the said period is not sustainable, and no ADD can be demanded from the petitioner, based on such extension Notification. The demand of ADD under the show cause notice dated 28.10.2015, for the period from 08.12.2014 to 26.04.2016, i.e. after the lapse of the Notification No.125 of 2010 is not sustainable. Petition allowed. - W. P. Nos. 22770 & 22771 of 2017 and W. M. P. No. 23898 of 2017 - - - Dated:- 6-10-2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petrochemicals Pvt. Ltd. (supra) to the petitioner's case. The understanding was, the Court will not embark upon the fact finding exercise, as the challenge is to the show cause notice, and it will test the merits of the case based on the decision in the case of Kumho Petrochemicals Pvt. Ltd. (supra). 6. A short prelude of what happened in the past, may be necessary to be referred, before I venture into the present controversy, as the same would lend support for resolving the issue involved herein. 7. The petitioner had earlier filed two Writ Petitions, viz., W.P.No.27873 of 2014 and W.P.No.33904 of 2014. In W.P.No.27873 of 2014, they sought for issuance of a writ of mandamus to forbear the respondents from charging ADD on the clearances by the petitioner of Populated Circuit Board Assemblies (PCBAs) from the Flextronics Special Economic Zone (FSEZ Unit) into Domestic Tariff Area (DTA Unit) of the petitioner. In W.P.No.33904 of 2014, the petitioner sought for issuance of writ of certioraried mandamus to quash the show cause notice issued by the first respondent/Development Commissioner, MEPZ-Special Economic Zone, Chennai, dated 01.12.2014, and to forbear the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, i.e. from 26.04.2016 to 25.04.2021. 11. The case of the petitioner rests on a slender, but firm point with regard to the effect of amendment to Notification No.125 of 2010, which was brought about, by Notification dated 15.01.2015, after a lapse of first Notification, i.e., with effect from 07.12.2014. The petitioner moved the High Court of Delhi, by filing a Writ Petition in W.P. (C) 9407 of 2014. The dispute pertains to the extension of duty upon initiation of sunset review under second proviso to Section 9A(5) of Customs Tariff Act, 1975. 12. The petitioner herein, who was one among the other petitioners in W.P. (C) Nos.4633, 4885, 4969, 5228, 5265 and 9407 of 2014, moved the Delhi High Court, by contending that the issue is covered by intra Court's judgment rendered in the case of Kumho Petrochemicals Pvt. Ltd. Vs. Union of India. The High Court of Delhi, in the afore mentioned Writ Petitions observed that, in the light of the said decision, the writ petitioners have to succeed, however, at the same time, it was conscious of the fact that the said judgment is pending in Appeal before the Honourable Supreme Court. Therefore, the Writ Petitions were disposed of with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r refund of the amounts collected as ADD for the period from 08.12.2014 to 26.04.2016, i.e., after the expiry of the said notification. At that juncture, the present Writ Petitions have been filed. 14. The learned Senior Counsel for the petitioner submitted that, the petitioner, apart from challenging the show cause notices 15.07.2017 and 28.10.2015, also raised other issues. However, it is submitted that, with regard to the other issues, the petitioner will agitate the same before the Adjudicating Authority, and the prayer is confined with regard to the levy of ADD based on the amendment Notification, which was issued after the lapse of principal Notification. 15. The learned Senior Panel Counsel for the first respondent would submit that the Writ Petition against a show cause notice is not maintainable in the light of the decisions of the Hon'ble Supreme Court i) in the case of (Special Director and another Vs. Mohd. Ghulam Ghouse and another) reported in (2004) 3 S.C.C. 440 and ii) (Union of Indian and another Vs. Kunisetty Satyanarayana) reported in (2006) 12 S.C.C. 28. The learned Senior Panel placed reliance on the decision of the learned Single Bench of this Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed against it's judgment in the case of Kumho Petrochemicals Pvt. Ltd., would govern the proceedings. It was specifically observed that, in case, the Hon'ble Supreme Court upholds the decision of the Delhi High Court, in Kumho Petrochemicals Pvt. Ltd., case (supra), the writ petitioners shall be entitled to the same relief. Consequently, the Writ Petition filed by the petitioner before the High Court of Delhi was disposed of in terms of the decision of the Hon'ble Supreme Court, in the case of Kumho Petrochemicals Pvt. Ltd. (supra). 21. The Honourable Supreme Court, in the case of Kumho Petrochemicals Pvt. Ltd. (supra) upheld the decision of the Delhi High Court and held that, collection of ADD after the life of the Notification, imposing ADD is not sustainable. The essence of the said decision is i) ADD Notifications are in the nature of temporary legislation and could not be amended after it lapsed; ii) Continuation of duty under Section 9A(5) of the Customs Tariff Act, 1975 is not automatic; such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposing anti-dumping duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2014 to 26.04.2016 on the very same grounds. However, the demand of ADD for the said period is not part of the impugned show cause notice, but part of the show cause notice, dated 28.10.2015, for which, the petitioner has submitted their reply. However, as already stated above, the legal issue having been settled by the Hon'ble Supreme Court, in Kumho Petrochemicals Pvt. Ltd. (supra), the petitioner should not have been denied the relief on technicalities. 26. Therefore, the demand of ADD under the show cause notice dated 28.10.2015, for the period from 08.12.2014 to 26.04.2016, i.e. after the lapse of the Notification No.125 of 2010 is not sustainable. The said show cause notice has been issued seeking ADD payable on PCBAs for the period from 14.11.2014 to 31.08.2015. The Notification No.125 of 2010 was in vogue till 07.12.2014. In the light of the decision of the Hon'ble Supreme Court, in Kumho Petrochemicals Pvt. Ltd. (supra), such Notification cannot be extended after it had lapsed. Consequently, the demand of ADD for the period from 08.12.2014 to 26.04.2016 is not sustainable. Therefore, the ADD demanded in the show cause notice dated 28.10.2015, for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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