TaxTMI 
TaxTMI 
2014 (3) TMI 640
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.... leviable. Later, it made a refund claim for Rs.28,85,394/- on 24.7.2006, which was adjudicated by the Assistant Commissioner (Refund) by an Order-in-Original No. 557/07 dated 25.5.2007. That order rejected the claim on the ground that the respondent should have in the first instance filed an appeal before the Commissioner (Appeals) challenging the assessment order imposing anti-dumping duty, as provided under Section 128 of the Customs Act. 3. The order relied on two decisions of the Supreme Court. The first was Commissioner of Customs v. Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC), where the Court held that: "Where an adjudication authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the Statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority (sic) had committed an error in passing the order" 4. The revenue also relies on another decision, in Priya Blue Industries Ltd. v. Commissioner of Customs, (2005) 10 SCC 436, where the Supreme Court noted: "6. We are unable to accept this submission. Just such a contention has been....
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....ce. The CC(A) held that since the goods imported in this case are of the same description - which has not been denied by the Customs authorities - no anti-dumping duty can be levied. Thus, in terms of Section 9A which states that "refund shall be made of so much of the anti-dumping duty which has been collected as in excess of the anti-dumping duty as so reduced", the CC(A) held that the duty paid was liable to be refunded even though the original assessment order was not challenged. 6. The CC(A)'s order was challenged by the Revenue before the CESTAT, which dismissed the appeal, holding that first, merely because the authority conducting the original assessment failed to appreciate the provisions of the Customs Tariff Act is no reason to prejudice the importer; secondly, the reasoning of the CC(A) as regards the applicability of Section 9A(2)(b), as opposed to Section 27 of the Customs Act, was correct; and finally, the respondent in this case had paid the duty under protest, thus indicating that, in any case, it contested the levy of the anti-dumping duty.Accordingly, the following questions of law arise in this case: (i). Whether the CESTAT ought to have found that Section....
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....y article is exported by an exporter or producer] from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an antidumping duty not exceeding the margin of dumping in relation to such article. Explanation. - For the purposes of this section, - (a) "margin of dumping", in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in ....
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.... (1) or any anti-dumping duty imposed under sub-section (2), unless specifically made applicable in such notification or such imposition, as the case may be, shall not apply to articles imported by a hundred per cent, exportoriented undertaking or a unit in a free trade zone or in a special economic zone. Explanation.-For the purposes of this sub-section, the expressions "hundred per cent export-oriented undertaking", "free trade zone" and "special economic zone" shall have the meanings assigned to them in Explanations 2 to sub-section (f) of section 3 of the Central Excise Act, 1944 (1 of 1944)] (3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that - (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the antidumping duty liable to be levied, th....
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....ation provided, by such exporter or producer: Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.] (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. [(8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act.] 9AA. Refund of anti-dumping duty in certain cases (1) [Where upon determination by an officer authorised in this behalf by the Central Government under clause (ii) of sub-section (2), an importer proves to the satisfaction of the Central Government that he has paid anti-dumping duty imposed under sub-section (1) of section 9A on any article, in excess of the actual margin of dumping in relation to such artic....
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.... provisionally under Section 9A(2) pending determination in accordance with Section 9A, is indicated in Section 9A(2)(b). The mechanism for refund of duty imposed under Section 9A(1) after final determination, if the importer can show that he has paid a duty in excess of the actual margin of dumping for the imported article, is indicated in Section 9AA. The Central Government is empowered to make rules to provide the manner in which the application for a refund claim can be made under Section 9AA under Section 9AA(2). This being the case, the mechanism for refund in the Customs Act under Section 27, for claim of refund per se, does not apply. 12. The applicability of Section 9A(8) to incorporate Section 27 of the Customs Act, in the opinion of this Court, would be after the final determination of applicability of anti-dumping duty under Section 9A(1), only "as far as may be" applicable keeping in mind Section 9AA. This is because, Section 9AA appears to be a complete code for refund claims after final determination, given that the Central Government is empowered to make rules regarding the manner and the time within which claims for refund may be made, under Section 9AA(2) of th....
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.... Act, 2004 (which it was argued, introduced Section 9A(8)) did not apply retrospectively to a notification in 2002. The Court held that the date of import was to be considered the date of passing the Customs barrier only in case of levy of customs duty; for all other duties including anti-dumping duties, the contract between the parties would determine the date of import in common law i.e. when the goods enter the territory of the importing country. In this context, the Court also held that the Parliament could not have intended to incorporate Section 15 of the Customs Act (via Section 9A(8) of the CTA) prior to 2004 since "Sub-section (8) of Section 9A was introduced by Finance Act, 2004. Prior thereto, the statute did not contemplate application of the provisions of the Customs Act and the rules and regulations made thereunder." (para 6, Sneh Enterprises (supra) 16. As is evident, the question of retrospective application of Section 9A(8) as it stands today did not arise in Sneh Enterprises (supra). The question before the Court in Sneh Enterprises (supra) was whether the Finance (No.2) Act, 2004 which amended Section 9A(8) could apply retrospectively to a 2002 notification, s....