AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 449
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....superseded or amended earlier) from the date of imposition of the provisional anti-dumping duly, that is, the 8^th December, 2009 or the imports of the subject goods originating in or exported from, China PR and Israel and the anti-dumping duty imposed shall be payable in Indian currency. the levy was made retrospectively applicable. 2. The supplier in the Special Economic Zone imports various inputs from manufacturers across the world and produces the equipment. The 'authorized officer' of the Special Economic Zone vide letter dated 22^nd December 2012 directed the appellant to pay the prescribed 'anti-dumping duty' for clearances effected after August 2010 when the provisional levy had ceased to have effect but made retrospectively leviable in the final notification dated 16^th December 2010. The 'anti-dumping duty' sought to be recovered was, therefore, confined to the clearances effected between 22^nd September 2010 and 16^th December 2010 along with interest thereon. Consequent upon rejection by Commissioner of Central Excise (Appeals-II), Chennai of the appeal challenging the letter of recovery vide order-in-appeal no.100/2015 (CXA-AA) dated 27^t....
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....within a special economic zone are not liable to 'anti-dumping duty'. Learned Authorised Representative reiterated the contents of the impugned order. 5. Having heard Learned Counsel for appellant and Learned Authorised Representative and perused the material on record, we find that the dispute relates to scope of levy of 'anti-dumping duty' on clearances from a special economic zone and the jurisdiction to levy during the inter regnum between the expiry of a provisional levy and imposition of final levy. 6. Special economic zones are administered by and through the Special Economic Zones Act, 2005 and Special Economic Rules 2006. Units within a Special Economic zone are permitted to procure inputs and services domestically or from outside the country free of payment of duty with intent to garner convertible foreign exchange through export of goods or services; units are required to submit annual performance reports (APR) for ascertainment of compliance with the condition of 'net foreign exchange positive'. At the same time these units are also allowed to participate in the domestic economy, designated as domestic tariff area (DTA), by supply of goods ....
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....nternational Financial Services Centre; g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers under the Central Sales Tax Act, 1956 (74 of 1956) if such goods are meant to carry on the authorised operations by the Developer or entrepreneur. (2) The Central government may prescribe the manner in which, and the terms and conditions subject to which, the exemptions, concessions, drawback or other benefits shall be granted to the Developer or entrepreneur under sub-section (1). Section 30 of the said Act is the charging provision for clearances into the domestic tariff area (DTA) by which customs duty is leviable. '30. Domestic clearance by Units.-Subject to the conditions specified in the rules made by the Central Government in this behalf: (a) any goods removed from a Special Economic Zone to the Domestic Tariff Area shall be chargeable to duties of customs including anti-dumping, countervailing and safeguard duties under the Customs Tariff Act, 1975 (51 of 1975), where applicable, as leviable on such goods when imported; and (b) the rate of duly and tariff valuation, if any, applicable to goods removed from a Spe....
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....ions' are outside customs jurisdiction. Consequently, authorized officers, not being officers of customs, are not empowered to invoke section 28 of Customs Act, 1962. That would explain the issue of a letter of recovery to the appellant. It is moot whether an authorized officer in a special economic zone can demand duty after clearance of goods without a specific empowerment to do so. Such action is not within the pale of the law and is unsustainable. 8. Learned Counsel places emphasis on the expression 'import' in the Customs Tariff Act, 1975 to contend that 'anti-dumping duty' is leviable on imports and that the definition of 'imports' does not include clearances from a special economic zone. That, no doubt, is unquestionable. The legal fiction of 'outside customs territory' does not alienate the special economic zones from the territory of India. The exclusion in section 53 of Special Economic Zones Act, 2005 is merely the legal wherewithal for excluding the applicability of the Customs Act, 1962 to goods imported for authorized operations. We find ourselves in agreement with the Learned Counsel that the Customs Act, 1962 and Customs Tariff....
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....xtendable when such goods, conforming in every way to the description in the 'anti-dumping' notification, is sought to be cleared into the domestic tariff area (DTA). That is the harmonious construction to be placed on the inclusion of 'anti-dumping' duty in section 30 of Special Economic Zones Act, 2005. 11. We find that the authorized officer and the first appellate authority have not examined the records to ascertain if the goods cleared to the appellant did match the description in the 'anti-dumping' notification with the special economic zone as a mere staging place for removal into the domestic tariff area (DTA). The bill of entry filed for claiming exemption under section 26 of Special Economic Zones Act, 2005 would evidence that 'anti-dumping duty' had been foregone at that stage. Should it be so evinced as having been foregone and the same goods have been cleared as such against a bill of entry into the domestic tariff area (DTA) the levy of 'anti-dumping duty' would be correct in law. As this exercise was not undertaken at the lower stages, the impugned order, bereft of this consideration, lacks sanctity. 12. We need not, however, put too....
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....incorporates the provisional anti-dumping duty within itself, but in the manner provided by Rule 13. Thus, it is clear that such incorporation can only be the period upto which the provisional duty can be levied and not beyond. Thus understood, it is clear that both literally, and in keeping with the object sought to be achieved - that is the making of laws in conformity with the WTO Agreement, there can be no levy of anti-dumping duty in the "gap " or interregnum period between the lapse of the provisional duly and the imposition of the final duty. Such interpretation makes it clear that clause 10.2 of the WTO Agreement is reproduced in the same sense though not in the same form in sub-rule (2)(a). The same result therefore as is envisaged in clause 10.2 is achieved by the said construction - that is anti-dumping duty may be levied retroactively for the period for which provisional measures have been applied. The said construction is in consonance the principles already laid down earlier in this judgment in that the WTO Agreement is intended to be applied by the various signatory nations in a uniform manner. This can only be done by construing the language of Section 9A read with ....
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....e provisional duty notification is in force, during the interregnum period, the full amount of final duty is liable to be recovered from the importer. This would turn Rule 21(1) on its head and result in an absurdity. A simple example will suffice. If provisional duty already imposed and collected is Rs. 50/- per metric ton (PMT), and final duly imposed say one year later with retroactive effect from the date of imposition of the provisional duly is Rs. 100/- PMT, the difference of Rs. 50/- PMT cannot be recovered from the importer for the period that the provisional notification is in force. Therefore, for the first 6 months in the aforesaid example, the importer is liable to pay nil duty. However, for the next 6 months, that is in the interregnum period between the expiry of the provisional duly and the date of imposition of the final duty, the importer becomes liable to pay Rs. 100 - PMT. The said example demonstrates how the arguments of the revenue would lead to an absurdity such as this. 45. Rule 21(1) also answers the contention of the Revenue that the object of anti-dumping laws would be defeated if it were found that dumping and material injury having been found, yet no....