Cus - Since there is no determination of ADD levy by notification, therefore, appeals u/s 9C of CTA are not maintainable: CESTAT
By TIOL News Service
NEW DELHI, SEPT 05, 2017: ALL the appellants are aggrieved by the non-imposition of Anti Dumping Duty on "AA Dry Cell Batteries" originating in or exported from China PR and Vietnam.
Pursuant to an application received from Association of Indian Dry Cell Manufacturers alleging dumping of impugned goods and for initiating investigation to impose ADD, the Designated Authority issued a final finding on 27/09/2016 concluding that dumped imports have not caused material injury to the Domestic Industry (DI) as the DI has realized much higher selling price as compared to the landed price of the subject goods from the subject countries, and earned huge profit.
Accordingly, the DA did not recommend imposition of ADD.
These final findings have been challenged in appeal.
The appellants also obtained some information through RTI application viz. the Technical Officer, TRU, Department of Revenue, had put up an office note on 17/10/2016 explaining the background of the case, starting from initiation of investigation and final recommendation of the DA. It is recorded therein (office note) that as no ADD was recommended for imposition, no further action lies at the end of Department of Revenue. The said note is approved by Chairman, CBEC.
The respondent (M/s Godrej & Boyce Manufacturing Co. Ltd.) objected to these appeals on the ground of maintainability by submitting that the Central Government has been vested with power to impose ADD; that the DA is only an Investigating Authority and his finding are only recommendatory ; that section 9C specifically provides that an appeal against order of determination or review thereof, can only be filed. Inasmuch as in the present case there is no determination or review with reference to imposition of ADD on the subject goods.
The Revenue too contested the maintainability of the appeals on the ground that these are not against an order of Central Government determining the imposition of ADD.
The Bench observed –
++ Admittedly, in the present case, the Government of India, Ministry of Finance, Department of Revenue who is the Competent Authority to impose any ADD on goods in terms of Section 9A did not issue any order either imposing or reviewing the imposition of ADD on subject goods. Though the DA initiated investigation in terms of the statutory powers conferred on him, on conclusion of the investigation he issued the final findings stating that there is no case for imposition of ADD. Thereafter, no order has been passed or notification issued in terms of Customs Tariff Act or the Rules of 1995, in this regard.
++ Rule 18 of the 1995 Rules [Customs Tariff (Identification, Assessment and Collection of Duty or Additional Duty on Dumped Articles and for Determination of Injury) Rules, 1995] talks about the powers of Central Government to impose ADD by notification in the official gazette. Admittedly, in the present case, there is no notification issued in the official gazette.
++ Information obtained under RTI Act cannot be equated to a notification issued under official gazette in terms of exercise of statutory powers vested in the Central Government.
Placing reliance on the apex Court decision in Saurashtra Chemicals 2009 (17) SCC 529 [SLP No.- 8203-8212 of 2000 dated 11 May 2000], the Bench concluded that since there is no determination of ADD levy by notification (as published in the official gazette by the Central Government under Rule 18), therefore, the appeals u/s 9C in the present case are not maintainable.
All the appeals were dismissed.
(See 2017-TIOL-3216-CESTAT-DEL)
