2022 (7) TMI 1199 - HC - Customs

Appeal under Customs Act 1962 Section 130 deemed maintainable despite rate of duty not in question.

Directorate General Of Trade Remedies & Anr. Versus Jindal Saw & Anr.

Directorate General Of Trade Remedies & Anr. Versus Jindal Saw & Anr. - 2022 (382) E.L.T. 615 (Del.) Issues Involved:1. Maintainability of the appeal under Section 130 of the Customs Act, 1962.2. Determination of whether the appeal concerns the 'rate of duty' or its continued imposition.3. Jurisdiction of the High Court versus the Supreme Court under Section 130E(b) of the Customs Act, 1962.4. Procedural aspects and compliance with anti-dumping duty (ADD) regulations.Issue-wise Detailed Analysis:1. Maintainability of the Appeal:The respondents raised a preliminary objection regarding the maintainability of the appeal under Section 130 of the Customs Act, 1962, arguing that it concerns the 'rate of duty' and its continued imposition. They contended that such matters should be appealed to the Supreme Court under Section 130E(b) of the Customs Act, 1962. The appellants argued that the appeal does not directly relate to the rate of duty but to whether the cessation of ADD would lead to the continuation or recurrence of dumping or injury to the domestic industry.2. Determination of Whether the Appeal Concerns the 'Rate of Duty':The respondents argued that the decision to not continue with the imposition of ADD is related to the rate of duty, citing various provisions of the Customs Tariff Act, 1975, and the 1995 Rules. They emphasized that the determination of ADD involves factors such as the margin of dumping and injury to the domestic industry. The appellants countered by stating that the appeal concerns the likelihood of injury to the domestic industry if ADD is discontinued, rather than the specific rate of duty.3. Jurisdiction of the High Court versus the Supreme Court:The respondents relied on the judgment in Commissioner of Service Tax v. ERNST & Young P. Ltd. to argue that matters related to the rate of duty should be appealed to the Supreme Court. The appellants cited judgments such as Navin Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs and Steel Authority India Ltd. v. Designated Authority, Directorate General of Anti-Dumping and Allied Duties to support their claim that the appeal is maintainable in the High Court as it does not directly concern the rate of duty.4. Procedural Aspects and Compliance with ADD Regulations:The case involved a series of procedural steps and compliance with ADD regulations. The background included multiple notifications, investigations, and reviews concerning the imposition and continuation of ADD on DI Pipes originating from China. The respondents had approached various courts, including the Gujarat High Court and the Supreme Court, seeking directions on the continuation of ADD. The Tribunal had remitted the matter to the Designated Authority (DA) for re-determination of ADD, which was contested by the appellants.Analysis and Reasons:The court analyzed the provisions related to ADD, emphasizing that ADD is a trade remedial measure distinct from customs duty. The court noted that the DA's role involves investigating allegations of dumping, determining the existence and effect of dumping, and recommending the imposition of ADD to protect the domestic industry. The court concluded that the appeal did not directly concern the rate of duty but rather the likelihood of injury to the domestic industry if ADD is discontinued. The court also rejected the objection that the appeal was not preferred by the Principal Commissioner or Commissioner of Customs, stating that the DA falls within the category of 'other party' aggrieved by the Tribunal's order.Conclusion:The court held that the preliminary objection regarding the maintainability of the appeal could not be sustained. The Registry was directed to list the appeal for further directions on the specified date.