Section 134 Finance Act 2023 not notified; amendments to sections 9A and 9C Customs Tariff Act not in force

CESTAT (New Delhi LB) held that section 134 of the Finance Act, 2023 has not been brought into force because the Central Government did not issue the required notification under section 1(2)(b); therefore amendments to sections 9A and 9C of the Customs Tariff Act are not in force. The Tribunal found the appeal against the designated authority's final findings and the consequential anti-dumping duty notification maintainable under the existing section 9C and rejected the appellant's contention that a future notification would preserve jurisdiction. The matter is listed for hearing on September 23, 2025.

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ISSUES PRESENTED AND CONSIDERED

1. Whether the amendments to sections 9, 9A and 9C of the Customs Tariff Act effected by section 134 of the Finance Act, 2023 have come into force in the absence of a notification under section 1(2)(b) of the Finance Act, 2023.

2. If section 134 has not come into force, whether an appeal under pre-amendment section 9C lies to the Tribunal against (a) the designated authority's final findings and (b) the Central Government's notification imposing anti-dumping duty.

3. Whether, assuming section 134 were in force, the scope of appeal under amended section 9C would be confined to "determination or review" by the designated authority and would exclude appeals against the Central Government's notification imposing anti-dumping duty.

ISSUE-WISE DETAILED ANALYSIS

Issue 1 - Coming into force of section 134 of the Finance Act, 2023

Legal framework: Section 1(2)(b) of the Finance Act, 2023 provides that sections 128-163 shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Section 134 (which amends sections 9, 9A and 9C of the Customs Tariff Act) falls within sections 128-163.

Precedent Treatment: Prior Finance Acts containing identical section 1(2)(b) language (Finance Acts 2021 and 2022) were followed by Executive notifications bringing relevant provisions into force on specific dates; Finance Act, 2023 itself saw issuance of Notification No. 28/2023-Central Tax bringing certain sections into force by Gazette notification.

Interpretation and reasoning: The Court interprets the clear statutory scheme: when Parliament expressly subjects a subset of Finance Act provisions to notification under section 1(2)(b), those provisions do not take effect automatically despite retrospective effect language contained in the provision itself. The retrospective clause in section 134 (w.e.f. 01.01.1995) cannot obviate the separately-prescribed step of executive notification under section 1(2)(b). The Executive's issuance of notifications in analogous prior Finance Acts and in respect of other sections of the same Finance Act (e.g., section 140) reinforces that practice and confirms the necessity of a Gazette appointment.

Ratio vs. Obiter: Ratio - Notification is required under section 1(2)(b) to bring section 134 into force; retrospective words in section 134 alone do not suffice.

Conclusion: Section 134 of the Finance Act, 2023 had not come into force because no notification under section 1(2)(b) appointing an effective date for section 134 had been produced. Therefore the pre-amendment statutory text of sections 9, 9A and 9C continued to operate.

Issue 2 - Maintainability of appeal under pre-amendment section 9C against designated authority findings and Central Government notification

Legal framework: Pre-amendment section 9A empowered the Central Government to impose anti-dumping duty by notification (subject to margin of dumping as ascertained and determined); pre-amendment section 9C permitted an appeal "against the order of determination or review thereof" to the Tribunal. The 1995 Anti-Dumping Rules allocate duties: the designated authority recommends amount and date (rule 4), makes final findings (rule 17) and the Central Government may impose duty by notification within three months of publication of final findings (rule 18); rule 23 provides for review by the designated authority and recommendation for extension.

Precedent Treatment: The Supreme Court in prior decisions held (a) the designated authority's order is recommendatory and the Central Government's notification effects determination; (b) a determination occurs by issuance of the Central Government's notification under rule 18; and (c) appeals have been treated as maintainable to the Tribunal against Central Government notifications which effect determination. This understanding was applied in subsequent Tribunal and High Court decisions treating the Central Government's act as quasi-judicial/determinative for appeal purposes.

Interpretation and reasoning: Because section 134 was not in force, the pre-amendment statutory regime governed. Under that regime, the Central Government's notification implementing the designated authority's recommendation (i.e., imposing anti-dumping duty) constituted the determination against which an appeal under section 9C could be maintained. The Court relied on the settled construction that the designated authority's findings are recommendatory and the Central Government makes the determinative order, and therefore an appeal challenging the notification (and final findings) is maintainable under unamended section 9C.

Ratio vs. Obiter: Ratio - Under the pre-amendment provisions (which continued to apply), an appeal to the Tribunal is maintainable against the Central Government's notification imposing anti-dumping duty (and consequentially against final findings connected thereto).

Conclusion: The appeal was maintainable before the Tribunal under the unamended provisions of section 9C against the final findings dated 29.09.2022 and the Central Government's notification dated 27.12.2022 imposing anti-dumping duty.

Issue 3 - Effect of amended section 9C (if operative): scope of appeal limited to determination or review by the designated authority

Legal framework: Section 134 (if brought into force) (i) amends section 9A to substitute "on a consideration of review" and omits "and determined" from the requirement that the Central Government "ascertain and determine" margin of dumping; and (ii) amends section 9C to replace references to "order" with "determination or review" and inserts an Explanation that "determination" or "review" means the determination or review done in the manner specified in rules made under sections 8B, 9, 9A and 9B (i.e., the 1995 Rules).

Precedent Treatment: The Supreme Court in earlier decisions (pre-amendment) characterized determination as occurring by issuance of the Central Government notification under rule 18; other authorities have recognized that the designated authority performs the inquiry and makes recommendations under the 1995 Rules.

Interpretation and reasoning: The amendment (i) separates the functions of ascertaining (Central Government) and determining (designated authority), by removing the Central Government's statutory role in "determining" margin of dumping and making the designated authority's determination/review the operative focus for appeal; and (ii) links the statutory notion of "determination or review" in section 9C explicitly to the procedural scheme in the 1995 Rules under which the designated authority determines (rule 17) and reviews (rule 23). The word "determination" connotes an authoritative adjudicative act by the designated authority (application of mind and conclusion). Consequently, if the amendment were in force, the appeal route would be against the designated authority's determination/review done under the Rules, rather than against a separate Central Government notification as the determinative act.

Ratio vs. Obiter: Ratio - Under the amended scheme (if operative), jurisdiction for appeals would lie against the designated authority's "determination or review" as done in the manner specified in the Rules; appeals against the Central Government's notification would not be the primary statutory vehicle for invoking Tribunal jurisdiction.

Conclusion: Were section 134 in force, the Tribunal's jurisdiction under section 9C would be confined to appeals against determinations or reviews of the designated authority (as carried out under the 1995 Rules) rather than against the Central Government's notification imposing anti-dumping duty. However, this interpretive consequence is prospective to the extent the amendment is brought into operation by notification (see Issue 1).

Cross-references and Practical Findings

1. Cross-reference to Issue 1: Because no notification under section 1(2)(b) was produced to bring section 134 into force, the Court applied the pre-amendment legal regime (see Issue 2 conclusion).

2. Cross-reference to Issue 3: The Court rejects the appellant's contention that even after a future notification bringing section 134 into force the Tribunal would retain jurisdiction to entertain appeals against Central Government notifications; the amended statutory text indicates a shift of the determinative locus to the designated authority and limits appeals to "determination or review" by that authority.

3. Administrative practice noted: Executive notifications have been used repeatedly to bring retrospectively-worded amendments into effect on appointed dates under analogous Finance Act provisions; this practice supports the statutory interpretation requiring Gazette appointment under section 1(2)(b).

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