C.J.Shah & Co. VERSUS C.C.Kandla

Customs Appeal No. 221 of 2012

(Arising out of OIA No. 59/2012/CUS/COMMR (A)/KDL dated 30.07.2012 passed by

Commissioner (Appeals) of Customs-Kandla)

 

C.J.Shah & Co.

VERSUS

C.C.Kandla

 

APPEARANCE:

Shri J.C. Patel and Rahul Gajera (Advocate) appeared for the Appellant

Shri G. Kirupanandan, Superintendent (Authorized Representative) for the

Respondent

CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR

HON’BLE MEMBER (TECHNICAL), MR. RAJU

Final Order No. A/ 10096 /2023

DATE OF HEARING: 26.09.2022

DATE OF DECISION: 23.01.2023

RAMESH NAIR

The brief facts of the case are that the appellant have imported

two consignments of Propylene Glycol from USA falling under CTH

29053200 and filed two Bills of Entry dated 09-10-2009 and 16-10-

2009 and cleared the goods, which were duly assessed by the

Customs. In respect of the said import, the Anti-dumpingDuty was

levied as per the Notification No. 117/2009-Cus., dated 13-10-2009

extending the Notification No. 105/2004-Cus., dated 8-10-2004.

Subsequent to such assessments and clearances of the goods, Less

Charge Demand/SCN dtd. 17.11.2009 was issued to the Appellant

under Section 28 of the Customs Act, 1962 demanding Anti –dumping

duty alognwith interest. In adjudicating, Ld. Additional Commissioner

of Customs vide OIO dtd. 02.08.2011 confirmed the demand. Being

aggrieved with the order Appellant filed appeal before the

Commissioner (Appeals), who vide impugned Order-In-Appeal dtd.

30.07.2012 upheld the Order. Therefore Appellant filed the present

appeal before us. 

  1. Shri J.C. Patel, Ld. Counsel appearing on behalf of the appellant

submits that the issue involved in this matter stands settled in the

Appellant’s own case in C.J. Shah & Co. Vs. CCE- 2019 (370)ELT 1094.

The ratio of the said decision squarely applies to the facts of the

present case and accordingly the imports made by the appellants after

the expiry of said Notification No. 105/2004 dtd. 01.10.2004 which

came to an end on 08.10.2009 are not liable to anti-dumping duty.

  1. On the other hand, Shri G. Kirupanandan, learned Superintendent

(Authorized Representative) appearing for the Revenue reiterates the

findings of the impugned orders.

  1. We have carefully considered the submission made by both the

sides and perused the records. The issue involved in the present

matter is whether Anti-dumping duty on Propylene Glycol, which was

imposed by Notification No. 105/2004 dtd. 08.10.2004 and which

came to an end on 08.10.2009 by virtue of Section 9A(5) of the

Customs Act, 1962, can be demanded in respect of goods imported

after 08.10.2009, when the same had not been extended before the

said expiry on 08.10.2009 and whether the extension after the said

expiry by Notification No. 117/2009 dtd. 13.10.2009 is valid in law.

  1. We find that in the identical facts in appellant’s own matter this

tribunal vide final order dtd. 25.06.2019 held as under:–

  1. We have carefully considered the submission made by both

the sides and perused the records. We find that in the identical

facts and on the legal issue, the Hon’ble Supreme Court in the

case of Union of India &Anr. v. M/s. Kumho Petrochemicals Co.

Ltd. (supra) decided. The relevant part of the order is

reproduced below :

  1. After giving due consideration to the arguments

advanced by the Learned Counsel for the parties, we are

inclined to agree with the High Court that proviso to sub

section (5) of Section 9A of the Act is an enabling

provision. That is very clear from the language of the said

provision itself. Sub-section (5) of Section 9A gives

maximum life of five years to the imposition of anti-

dumping duty by issuing a particular notification. Of

course, this can be extended by issuing fresh notification.

However, the words ‘unless revoked earlier’ in sub-section

(5) clearly indicate that the period of five years can be

curtailed by revoking the imposition of anti-dumping duty

earlier. Of course, provision for review is there, as

mentioned above, and the Central Government may

extend the period if after undertaking the review it forms

an opinion that continuation of such an anti-dumping duty

is necessary in public interest. When such a notification is

issued after review, period of imposition gets extended by

another five years. That is the effect of first proviso to sub

section (5) of Section 9A. However, what we intend to

emphasise here is that even as per sub-section (5) it is not

necessary that in all cases anti-dumping duty shall be

imposed for a full period of five years as it can be revoked

earlier. Likewise, when a review is initiated but final

conclusion is not arrived at and the period of five years

stipulated in the original notification expires in the

meantime, as per second proviso ‘the anti-dumping duty

may continue to remain in force’. However, it cannot be

said that the duty would automatically get continued after

the expiry of five years simply because review exercise is

initiated before the expiry of the aforesaid period. It

cannot be denied, which was not even disputed before us,

that issuance of a notification is necessary for extending

the period of anti-dumping duty. Reason is simple. There is

no duty or tax can be imposed without the authority of

‘law’. Here, such a law has to be in the form of an

appropriate notification and in the absence thereof the

duty, which is in the form of a tax, cannot be extracted as,

otherwise, it would violate the provisions of Article 265 of

the Constitution of India. As a fortiorari, it becomes

apparent that the Government is to exercise its power to

issue a requisite notification. In this hue, the expression

‘may’ in the second proviso to sub-section (5) has to be

read as enabling power which gives discretion to the

Central Government to determine as to whether to

exercise such a power or not. It, thus, becomes an

enabling provision.

  1. As noticed above, the High Court has held that once

the earlier Notification by which anti-dumping duty was

extended by five years, i.e. up to January 1, 2014,

expired, the Central Government was not empowered to

issue any Notification after the said date, namely, on

January 23, 2014, inasmuch as there was no Notification in

existence the period whereof could be extended. The High

Court, in the process, has also held that the Notification

extending anti-dumping duty by five years, i.e. up to

January 1, 2014 was in the nature of temporary legislation

and validity thereof could be extended, in exercise of

powers contained in second proviso to sub-section (5) of

Section 9A of the Act only before January 1, 2014.

  1. Two things which follow from the reading of the

Section 9A(5) of the Act are that not only the continuation

of duty 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. Even otherwise, Notification dated

January 23, 2014 amends the earlier Notification dated

January 2, 2009, which is clear from its language, and has

been reproduced above. However, when Notification dated

January 2, 2009 itself had lapsed on the expiry of five

years, i.e. on January 1, 2014, and was not in existence on

January 23, 2014 question of amending a non-existing

Notification does not arise at all. As a sequitur,

amendment was to be carried out during the lifetime of the

Notification dated January 2, 2009. The High Court, thus,

rightly remarked that Notification dated January 2, 2009

was in the nature of temporary legislation and could not be

amended after it lapsed.

From the above judgment of the Hon’ble Supreme Court, we find

that the Hon’ble Supreme Court observes that once a notification

enforcing anti-dumping duty is expired and non-existent, such

non-existent notification cannot be extended. In the facts of the

present case, the Notification No. 105/2004-Cus., admittedly

expired on 8-10-2009. Thereafter, the said notification was

extended vide Notification No. 117/2009-Cus., dated 13-10-

  1. Since the Notification No. 105/2004-Cus. was expired on

8-10-2009, on 13-10-2009 the Notification No. 105/2004-Cus.

was not in existence. Accordingly, on 13-10-2009, it could not

have been extended. Therefore, the result is that no anti

dumping duty can be levied in view of Notification No. 105/2004-

Cus. which was extended vide Notification No. 117/2009-Cus.

during the period after 8-9-2009. Accordingly, the demand is not

sustainable. Consequently, the impugned order is set aside. The

appeal is allowed.

  1. By following the ratio of above judgment, we hold that the demand

confirmed by the adjudicating authority is not sustainable. Hence the

impugned order is set aside. Appeal is allowed.

(Pronounced in the open court on 23.01.2023)

(RAMESH NAIR)

MEMBER (JUDICIAL)

(RAJU)

MEMBER (TECHNICAL)

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