Anti Dumping duty is levied for protection of domestic industry & not to serve interest of revenue - Recovery of ADD on imported sheet glass from China falling under CTH 70049099 and not falling under Tariff Items mentioned in Notifn 07/2015 is without jurisdiction: HC
By TIOL News Service
AHMEDABAD, DEC 31, 2015: BY petition under Article 226 of the Constitution of India, the petitioner sought an order or direction holding and declaring that the action of the respondents of seeking to levy anti-dumping duty on imports of glass in sheets from China PR classified under Tariff Item 70049099 is without jurisdiction and without authority of law.
In exercise of powers under section 9A of the Act read with rules 18 and 20 of the rules, the first respondent issued Notification No.07/2015-Customs (ADD) dated 13.3.2015, imposing definitive anti-dumping duty at the rate of USD 63 per MT on the import of goods falling under Tariff Items 70042011 and 70042019 of the First Schedule to the Act originating in or exported from China PR.
The petitioner received a demand notice dated 24.4.2015 from the fourth respondent stating that the glass imported by the petitioner vide Bill of Entry No.8601656 dated 16.3.2015 fell under Tariff Item 70049099 and demanding anti-dumping of Rs.1,97,820/- with interest at the rate of 18% per annum within ten days.
The point of dispute is while the DGAD in their final findings mentioned "The subject goods are also being imported under other tariff headings such as 70031290, 70031990, 70033090, 70042099, 70049019, 70049099, 70052110, 70053090, 70091090, 70091010, 70099100, 70119090 etc. However, the customs classification is indicative only and is not binding on the scope of this investigation", the ADD notification mentioned only Tariff Items 70042011 and 70042019.
According to the revenue, the subject goods referred to in the duty table were earlier being imported under other tariff headings including Tariff Item 70049099 and that the designated authority had also clarified that the customs classification is indicative only and is not binding on the scope of the investigation. It was submitted that, therefore, there was some ambiguity as regards whether the tariff items mentioned in the note below the duty table were also to be subjected to anti-dumping duty under the said notification. Hence, a clarification was sought from the office of the Chief Commissioner of Customs, Ahmedabad and it was decided that pending clarification, sheet glass falling under CTH other than 70042011 and 70042019 may be assessed provisionally against Bond of duty difference backed by 5% of FD/BG. It was submitted that it is in these circumstances that the demand notices have been issued to the respective importers. It was, accordingly, urged that in the notification dated 13.3.2015 there is an anomaly in the specified CTHs and definition of specified goods. Under the circumstances, with a view to safeguard the interest of the revenue as the Notification No.07/2015-Customs (ADD) dated 13.3.2015 is issued on the basis of final findings notified vide Notification No.14/22/2013- DGAD dated 19.12.2014 issued by the Director General of Anti- Dumping Duty and there being an anomaly in the specified CTH and definition of specified goods, the letter dated 30.3.2015 and demand notice dated 24.4.2015 came to be issued.
However, the High Court held:
+ It may be noted that while in the final findings, the designated authority had made a note below the duty table stating that the subject goods were also imported under other tariff headings including CTH 70049099, such table does not find place in the notification issued by the Central Government. Under the circumstances, insofar as the notification dated 13.3.2015 is concerned, the definitive antidumping duty imposed by the said notification relates only to sheet glass bearing Tariff Item 70042011 or 70042019. The Central Government, after considering the recommendations made by the designated authority, has not thought it fit to include the said note in the notification dated 13.3.2015. Insofar as the notification dated 13.3.2015 is concerned, the definitive anti-dumping duty is imposed only on sheet glass bearing Tariff Item No.70042011 and 70042019.
+ In the opinion of this court, the very premise on which the respondents seek to recover anti-dumping in respect of sheet glass falling under Tariff Item 70049099 viz. to safeguard the interest of the revenue, is itself fallacious, having regard to the fact that anti-dumping duty is levied for the protection of domestic industry and not to safeguard the interest of the revenue.
+ The respondent authorities have no authority in law to demand definitive anti-dumping duty in relation to the goods imported by the petitioner which do not fall under the Tariff Items mentioned in the Notification No.07/2015-Customs (ADD) dated 13.3.2015. Under the circumstances, the impugned demand notice as well as the communication dated 30.3.2015 cannot be sustained.
(See 2015-TIOL-2947-HC-AHM-CUS)
