TaxTMI 
TaxTMI 
2017 (10) TMI 921
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.....P.No.22770 of 2017, the petitioner seeks for issuance of a writ of certiorarified mandamus to quash the show cause notice, dated 15.07.2017 issued by the first respondent, the Principal Commissioner of Customs, Chennai VII, Commissioner (Air Cargo), insofar as it proposes to levy Anti-Dumping Duty (hereinafter referred as ADD ) for the period from 01.09.2015 to 07.12.2015 and to forbear the first respondent from charging any ADD for the period from 08.12.2014 to 26.04.2016, i.e., the period after the lapse of the Notification No.125/2010 ADD with effect from 07.12.2014. 4. In W.P.No.22771 of 2017, the petitioner seeks for a direction upon the respondents 2 to 4 to grant refund of amounts, representing ADD, collected in terms of the Notification No.125/2010 ADD, and to return the Bank Guarantees and personal bonds collected during the period from 08.12.2014 to 26.04.2016 post lapse of Notification No.125/2010 ADD with effect from 07.12.2014. 5. When the Writ Petitions were heard for admission on 24.08.2017, Mr. Sathish Parasaran, the learned Senior Counsel for the petitioner submitted that, no ADD can be levied on the petitioner, in the light of the decision of the Honourable....
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....ment Commissioner shall transfer all the files related to the petitioner to the Jurisdictional Customs Officer, who shall take up the case for adjudication as a regular case based on merits and in accordance with law. There were other directions, which were incidental and ancillary to the directions, transferring the files to the Customs Officer for adjudication. After the Writ Petitions were disposed of, the petitioner is stated to have given a reply to the Jurisdictional Customs Officer, presently, the first respondent, and the adjudication process is going on. Whileso, the first respondent has issued the impugned show cause notice, dated 15.07.2017, seeking to levy ADD on the clearances from FSEZ Unit into DTA Unit for the period 01.09.2015 to 07.12.2015 and 26.04.2016 to 02.12.2016. 9. Mr. Sathish Parasaran, the learned Senior Counsel for the petitioner submitted that, this Court may take note of the following three Notifications, which are ADD Notifications relevant to the case on hand:- 1.Notification 125/2010 Cus. dated 16.12.2010; 2.Notification No.1/2015 Cus. (ADD) dated 05.01.2015;and 3.Notification No.15/2016 Cus. (ADD) dated 26.04.2016. ....
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....null and void. It was held that, duty, during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposing ADD, and in this context, it would be beneficial to refer to relevant portion of the said order, which is as follows:- "40. Two things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposing anti-dumping duty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 2, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 2, 2009 itself had lapsed on the expiry of five years, i.e., on January 1, 2014, and was not in existence on January 23, 2014 question of amending a non-existing Notification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 2, 2009. The High Court, thus, rightly remarked that Notification dated....
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....s are i) Whether the Writ Petition is maintainable against a show cause notice? and ii If so, whether the impugned show cause notice, insofar it relates to the levy of ADD based on the amendment Notification, which was issued after the lapse of principal Notification is valid and proper ? 18. With regard to the first issue that the Writ Petition is not maintainable against the show cause notice, there can be no quarrel over the said proposition, but the Courts have carved out certain exceptions to this Ruling. In the considered view of this Court, the case on hand would fall within one such exceptions, in the light of the law being settled by the Hon'ble Supreme Court. Therefore, the first issue is answered in favour of the petitioner. 19. So far as the second issue is concerned, whether the impugned show cause notice, insofar it relates to the levy of ADD based on the amendment Notification, dated 05.01.2015, after the lapse of Notification No.125 of 2010, dated 16.12.2010 is valid and proper, the only conclusion, that can be arrived at, is to hold that the amendment Notification, dated 05.01.2015, having been issued after the lapse of principal Notification No.125 of 20....
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....3. Further, the demand of ADD during the period of review is not automatic, but, has to be imposed before the expiry of five years, which is life of the Notification, imposing ADD. As noticed above, the Notification imposing ADD, dated 16.12.2010 had lapsed on 07.12.2014. Therefore, the extension Notification, dated 05.01.2015, issued after the lapse of the said period is not sustainable, and no ADD can be demanded from the petitioner, based on such extension Notification. Hence, reliance placed by the learned Senior Panel Counsel for the Revenue on the decision of the learned Single Bench of this Court in Hyundai Motors India Ltd. (supra), in support of his contention that Notification extending the period for levy of ADD is not required to be passed before the expiry of the period of the principal Notification does not lend support to the case of the Revenue, as the law has since been settled by the Hon'ble Supreme Court, in Kumho Petrochemicals Pvt. Ltd. (supra). 24. Thus, by applying the above referred decision, i.e., the order, dated 01.03.2017 in the Writ Petition filed by the petitioner before the High Court of Delhi, and the decision of the Hon'ble Supreme Court,....