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.
- 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.
- On the other hand, Shri G. Kirupanandan, learned Superintendent
(Authorized Representative) appearing for the Revenue reiterates the
findings of the impugned orders.
- 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.
- We find that in the identical facts in appellant’s own matter this
tribunal vide final order dtd. 25.06.2019 held as under:–
- 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 :
- 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.
…
- 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.
…
- 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-
- 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.
- 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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