IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 Cus.Appeal.No. 16 of 2006() --------------------------- AGAINST FINAL ORDER NO. 1508/2005 DATED 18.8.2005 IN A.NO..C/242//2004 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE .................... APPELLANT ----------------------------- THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, COCHIN-9. BY ADV. SRI.JOHN VARGHESE, ASSISTANT SG SRI.ABRAHAM THOMAS,SC,CENTRAL BOARD-EXC RESPONDENT(S): --------------- AKASH TRADING CO., EMERALD HOUSE, ROOM NO.4004 (4TH FLOOR), S.D.ROAD, SECUNDERABAD. THIS CUSTOMS APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009, ALONG WITH CUA NOS. 17,15 & 24 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. ------------------------------------------------- Cus. Appeal No.15,16, 17 & 24 OF 2006 -------------------------------------------------- Dated this the 15th day of July, 2009 C.R. JUDGMENT Ramachandran Nair,J. The question raised in the connected appeals filed by the Department is whether respondents are liable to pay anti-dumping duty on the import of Compact Florescent Lamps (CFL) from the Peoples Republic of China and Hong Kong based on Annexure B notification issued by the Central Government and produced in Customs Appeal No.7 of 2009. Admittedly provisional anti-dumping duty was introduced on the items imported from China and Hong Kong vide Annexure A notification dated 21.12.2001 issued under sub-section (2) of Section 9A of the Customs Tariff Act read with Rules 13 and 20 of the Customs Tariff (Identification, Assessment, and Collection of Anti-dumping Duty on Dumped Articles for Determination of Injury) Rules, 1995. Imports were made by the respondents after expiry of six months from the date of issue of Annexure A providing for levy of provisional Anti-dumping duty. 2 However, since anti-dumping duty was introduced under Annexure B final notification on the CFL imported from China and Hong Kong with effect from 21.12.2001, the date of introduction of provisional duty under Annexure A notification demands of duty were made against respondents. Inspite of the provision contained in Annexure B providing for levy of anti-dumping duty with effect from 21.12.2001 , the first appellate authority as well as the Tribunal held that anti- dumping duty was not payable by the respondents as Annexure A notification had expired by the time imports were made by the respondents. It is against these orders of the Tribunal that the Department has filed these appeals. 2. We have heard Sri. John Varghese and Sri. Abraham Thomas, standing counsel appearing for the appellants and Sri. Joseph Kodiyanthara and other counsel appearing for the respondents. 3. Counsel appearing for the appellants produced before us the decisions of the Principal Bench of the Tribunal at New Delhi in APOLLO TYRES LTD. V. UNION OF INDIA, (2005) 192 ELT 1137 3 and in NITCO TILES LTD. V. DESIGNATED AUTHORITY, (2006) 193 ELT 17 and two member Bench decision of the Tribunal, following the above two decisions, in BANSILAL LEISURE PARKS LTD. COMMISSIONER OF CUSTOMS, KOLKATA, (2007) 213 ELT 246, wherein the Tribunal has taken a view exactly contrary to the findings in the impugned orders and held that anti-dumping duty can be levied for imports made after expiry of notification providing for provisional duty, if final notification issued levying anti-dumping duty is made effective from the date of introduction of provisional duty. Counsel appearing for the respondents submitted that the respondents in those cases have taken the matter in appeal before the Supreme Court and the same is pending. However, since the appeals are maintainable against the impugned orders of the Tribunal before us, we proceed to decide the appeals on merits. 4. In the first place we notice that the Tribunal has not considered the relevant clause of Annexure B notification which is the final order issued under Section 9A(5) of the Customs Tariff Act read with Rules 18 and 20of the Anti-dumping Rules providing for 4 anti-dumping duty on the items, namely, CFL, imported from People's Republic of China and Hong Kong. In fact under clause (2) of this notification, anti-dumping duty is levied with effect from 21.12.2001 which means that all imports of items of CFL made from China and Hong Kong from this date will attract anti-dumping duty. The Tribunal has no power to go into the validity of Annexure B notification providing for anti-dumping duty with effect from the date of introduction of provisional duty under Annexure A notification, nor have they found Annexure B notification invalid. We do not know then, on what basis the Tribunal has held that anti-dumping duty cannot be levied after expiry of Annexure A notification, which is the one providing for provisional duty pending final orders in the investigation initiated under the Anti-dumping Rules. The order of the Tribunal is therefore contrary to Annexure B notification which is the basis of levy. We are of the view that the Tribunal committed the mistake probably by assuming that levy is under Annexure A notification which provides for provisional duty and since it had expired, the Tribunal held that anti-dumping duty cannot be levied on 5 the importers for imports made after expiry of Annexure A notification. We are sure that if the Tribunal had considered provisions of Annexure B, the final notification particularly clause (2), they had no escape from upholding the levy unless they declared clause (2) of the notification invalid for which we doubt whether they have the power. 5. Counsel appearing for the appellants relying on Rule 20(2) (a) of the Anti-dumping Rules contended that the said rule expressly confers authority on the Government to introduce anti-dumping duty with effect from the date of imposition of provisional levy which is exactly what is done under Annexure B notification. However, counsel appearing for the respondents relying on Rule 21 submitted that there is provision for refund of excess duty if any levied and collected over the provisional duty and similarly sub-rule (2) of Rule 21 specifically bars collection of differential duty if anti-dumping duty finally levied is more than the provisional duty imposed under the proisional order. It is also provided in sub-rule (3) of Rule 21 that if the investigation leads to withdrawal of provisional duty, then the duty 6 collected under the provisional order shall be refunded to the importer. Relying on this Rule, counsel contended that Rule visualises validity of provisional orders until final adjudication based on final notification issued after completion of investigation under Section 9A(5) of the Customs Tariff Act. So much so, the contention of the respondents is that retrospective levy under final notification issued under Section 9A(5) of the Act is possible only for the period when the provisional notification providing for anti-dumping duty was in force. In other words, according to respondents, once the provisional notification, namely, Annexure A, expired, levy from the date of introduction of provisional duty under the said notification could not have been provided under Annexure B, the final notification. We therefore notice that the challenge of respondents is essentially on the validity of Annexure B notification which in clear terms provides for levy of anti-dumping duty from the date of introduction of provisional duty under Annexure A. As already observed by us, the Tribunal has no authority to go into the validity of notification issued under Section 9A(5) of the Act. So much so, in 7 the appeals arising from the orders of the Tribunal, this Court should not go into the validity of the notification. However, since the respondents contend that the levy and demand of anti-dumping duty are not permissible under Annexure B notification, we have to necessarily consider whether Annexure B notification is consistent with the scheme of levy under Section 9A of the Act read with Rule 20 and other provisions of the Anti-dumping Rules. For easy reference we extract hereunder Section 9A(1), (2) and (5) of the Customs Tariff Act and Rules 20 and 21 of the Anti-dumping Rules: Section 9A. Anti-dumping duty on dumped articles.- (1) Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the official gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation.-......... (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate 8 of such value and margin and if such anti-dumping duty exceeds the margin as so determined:- (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and, (b) refund shall be made of so much of the anti- dumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. ..................... (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, ceased to have effect on the expiry of five years from the date of such imposition. Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period if five years has not come to a conclusion before such expiry, the anti-dumping duty may be continue to remain in force pending the outcome of such a review for a further period not exceeding one year. ................. Rule 20. Commencement of duty.- (1) The anti-dumping 9 duty levied under rule 13 and rule 19 shall take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub-rule (1) (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the anti-dumping duty may be levied from the date of imposition of provisional duty. (b) in the circumstances referred to in sub-section (3) of section 9A of the Act, the anti-dumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty: Provided that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the cases of violation of price undertaking referred to in sub-rule (6) of rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of terms of such undertaking. Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 10 21. Refund of duty.- (1) If the anti-dumping duty imposed by the Central Government on the basis of the final findings of the investigation conducted by the designatred authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. (2) If the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. (3) If the provisional duty imposed by the central Government is withdrawn in accordance with the provisions of sub-rule (4) of rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the importer. It is clear from the above provisions that pending enquiry and orders, sub-section (2) of Section 9A authorises imposition of anti-dumping duty provisionally. Second proviso to Rule 13 states that provisional order shall remain in force only for a period not exceeding six months from the date of the order, and extension of the same can be made upto nine months, upon request by the importers representing a significant percentage of the trade. In this case, there is no extension of the period of validity of Annexure A notification, and so 11 much so, it ceased to be effective on expiry of six months from the date of issue of notification, that is, 21.12.2001. However, there is no provision in the Act or Rules making it mandatory for the Central Government to issue final orders on liability for anti-dumping duty before expiry of the provisional order issued under Section 9A(2) of the Act. In fact there is no time bar for issuing final order determing anti-dumping duty if any payable on the items under investigation. However Rule 20(2)(a) gives authority to the Government to levy anti- dumping duty with effect from the date of imposition of provisional duty. In fact, in our view, the contention of the respondents and assumption of theTribunal, that levy under Annexure B notification is retrospective is not correct because provision for levy of anti- dumping duty with retrospective effect is contained in Section 9A(3) read with Rule 20(b) of the Rules, whereas Annexure B is issued under Section 9A(5) read with Rule 20(2)(a) of the Rules. In this case, there is no retrospective levy because retrospective levy can be only for period prior to the issue of notification providing for provisional anti-dumping duty. Once an order under Section 9A(2) is 12 issued imposing duty provisionally then the question of retrospectivity does not arise and only Rule 20(2)(a) applies which authorises the Government to levy anti-dumping duty from the date of introduction of provisional duty which is the case here. 6. Rule 21 also does not stand in the way of levy of duty through Annexure B notification from the date of introduction of provisional duty because it applies to cases where importers have paid anti-dumping duty based on provisional order and question of payment of excess does not arise after expiry of the validity period of the order providing for provisional duty. So much so, imports made after expiry of the order providing for provisional anti-dumping duty are not covered by Rule 21 at all. Therefore we are of the view that Annexure B notification issued giving effect to it's provisions from the date of levy of provisional duty under Annexure A notification is consistent with the provisions of the Act and Rules. In other words, once provisional anti-dumping duty is levied for any goods, any subsequent import of such goods will attract anti-dumping duty if final orders provide for levy with effect from the date of provisional order. 13 We are therefore of the view that the Tribunal went wrong in holding that anti-dumping duty cannot be levied or collected from the respondents after expiry of Annexure A notification. Levy of anti- dumping duty is permissible under Annexure B notification which is the final notification in force based on which duty is levied. We endorse the view expressed by the Principal Bench of the Tribunal in the decision above referred as correct. Consequently all the appeals are allowed vacating the orders of the Tribunal and that of the first appellate authority and by restoring levy and demand of anti-dumping duty on the respondents under Annexure B, the final notification. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 14