TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 39
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....or the subject goods. 2.1 The controversy in the instant case lies in a very narrow campus. The Directorate General of Anti-Dumping and Allied Duties commenced investigation concerning imports of fully oriented yarn/spin draw yarn/Flat yarn of Polyester (non-textured and non-POY) and other yarns originating in or exported from China PR, Thailand and Vietnam. 2.2 The investigation lead to issuance of the preliminary findings, which were notified by notification dated 23.01.2009. The product under consideration as stated in the preliminary finding is yarns confirming to the tariff description of Customs Heading 5402 47. This is evident from paragraph-B, sub clause 3-6 of the notification dated 23.01.2009. In the said notification, there was a recommendation for levy of anti-dumping duty in respect of items covered under Chapter Heading 5402 47. 2.3 The petitioner's case is that they are dealing with products which are classifiable under Heading 5402 2090 falling under the head ''other'' and the tariff description of Customs Heading 5402 20 falling under the head ''High tenacity yarn of Polyester''. 2.4 The Central Government issued notification....
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.... be substituted. Thus, the notification issued pursuant to the sunset review notified the product classifiable under Chapter Heading 5402 47. Based on the said notification, the petitioner requested for refund of the anti-dumping duty due to the notification change, which has been rejected by order dated 21.03.2017. This order is impugned in W.P.No.13656 of 2017. 3. The issue which falls for consideration is with regard to effect of Notification No.5 of 2016-Cus.(ADD), dated 22.02.2016 as to whether it is clarificatory in nature and if so retrospective or whether it is prospective. 4. Heard Mr.S.Murugappan, learned counsel appearing for the petitioner and Mr.K.S.Ramasamy, learned Senior Standing Counsel, appearing for the respondents. 5.1 Mr.S.Murugappan contended that both in the preliminary finding and in the final finding and in the notification issued by the Central Government consequent upon those finding, the tariff heading was mentioned as 5402 47. However, at the time when the notification was issued pursuant to sunset review, the tariff heading stood changed to 5402, covering all products, which could not have been done in the sunset review. The scope of the notificatio....
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....ective effect in the absence of a specific provision in the statue conferring such power". In the subject case the amendment to the Notification No.51/2015-Cus(ADD) was given vide Notification No.05/2016-Cus(ADD) on 22.06.2016 but without any specific provision for retrospective effect. Hence for all purpose the amendment shall have only prospective effect and the Notifications comes into effect from the date of publishing in the Gazattee of India i.e., from 22.02.2016. As the subject Bills of Entry for which the refund claims are filed, are all dated prior to 22.02.2016 and hence the amendment will not be applicable to these Bills of Entry. 6.4 It is further submitted that the above writ petitions should not be entertained by this court as the petitioner has appeal remedy and there is no question of law involved in these writ petitions and therefore, the petitioner should avail an appeal remedy available under the Customs Act, 1962. 7. The result of the writ petitions would depend upon the interpretation to the Notification No.5 of 2016, dated 22.02.2016 as to whether it is prospective or retrospective. 8. To be noted that the notification uses the word 'substituted'.....
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....ection in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act the same would also follow in the case of a substituted section in an Act." 9.5 In the case of Government of India v. Indian Tobacco Association reported in 2005(187 E.L.t. 162 (SC) while dealing with the exemption notification which was issued by way of substitution, it was held as follows:- "15. The world 'substitute' ordinarily would mean 'to put (one) in place of another' or 'to replace'. In Black's Law Dictionary, Fifth Edition at page 1281, the word 'substitute' has been defined to mean 'to put in the place of another person or thing' or 'to exchange'. In Collins English Dictionary, the word 'substitute' has been defined to mean to serve or cause to serve in place of another person or thing; 'to replace (an atom or group in a molecule) with (another atom or group); or ' a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'. 16. By reason of the aforementioned amendment no substantive right has been taken....