TaxTMI 
TaxTMI 
2009 (7) TMI 732
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....Rules, 1995. Imports were made by the respondents after expiry of six months from the date of issue of Annexure A providing for levy of provisional Anti-dumping duty. However, since anti-dumping duty was introduced under Annexure B final notification on the CFL imported from China and Hong Kong with effect from 21-12-2001, the date of introduction of provisional duty under Annexure A notification demands of duty were made against respondents. Inspite of the provision contained in Annexure B providing for levy of anti-dumping duty with effect from 21-12-2001, the first appellate authority as well as the Tribunal held that anti-dumping duty was not payable by the respondents as Annexure A notification had expired by the time imports were made by the respondents. It is against these orders of the Tribunal that the Department has filed these appeals. 2. We have heard Sri. John Varghese and Sri. Abraham Thomas, standing counsel appearing for the appellants and Sri. Joseph Kodiyanthara and other counsel appearing for the respondents. 3. Counsel appearing for the appellants produced before us the decisions of the Principal Bench of the Tribunal at New Delhi in Apollo Tyres Ltd. v. U....
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....ers for imports made after expiry of Annexure A notification. We are sure that if the Tribunal had considered provisions of Annexure B, the final notification particularly clause (2), they had no escape from upholding the levy unless they declared clause (2) of the notification invalid for which we doubt whether they have the power. 5. Counsel appearing for the appellants relying on Rule 20(2)(a) of the Anti-dumping Rules contended that the said rule expressly confers authority on the Government to introduce anti-dumping duty with effect from the date of imposition of provisional levy which is exactly what is done under Annexure B notification. However, counsel appearing for the respondents relying on Rule 21 submitted that there is provision for refund of excess duty if any levied and collected over the provisional duty and similarly sub-rule (2) of Rule 21 specifically bars collection of differential duty if anti-dumping duty finally levied is more than the provisional duty imposed under the provisional order. It is also provided in sub-rule (3) of Rule 21 that if the investigation leads to withdrawal of provisional duty, then the duty collected under the provisional order sha....
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....the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined :- (a) The Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and, (b) refund shall be made of so much of the anti-dumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. ……………. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, ceased to have effect on the expiry of five years from the date of such imposition. Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension : Provided further that where a review initiated before the expiry of the aforesaid period....
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....e (4) of rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the importer. It is clear from the above provisions that pending enquiry and orders, sub-section (2) of Section 9A authorises imposition of anti-dumping duty provisionally. Second proviso to Rule 13 states that provisional order shall remain in force only for a period not exceeding six months from the date of the order, and extension of the same can be made upto nine months, upon request by the importers representing a significant percentage of the trade. In this case, there is no extension of the period of validity of Annexure A notification, and so much so, it ceased to be effective on expiry of six months from the date of issue of notification, that is, 21-12-2001. However, there is no provision in the Act or Rules making it mandatory for the Central Government to issue final orders on liability for anti-dumping duty before expiry of the provisional order issued under Section 9A(2) of the Act. In fact there is no time bar for issuing final order determing anti-dumping duty if any payable on the items under investigation. However Rule 20(2)(a) gives authority to the Government to....