2020 (3) TMI 529

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....-10-2009 extending the Notification No. 105/2004-Cus., dated 8-10-2004. The appellant, being aggrieved with the demand of Anti-dumping duty, filed the present appeal. 2. Ms. Shamita J. Patel, Ld. Counsel appearing on behalf of the appellant submits that the original Notification No. 105/2004-Cus., dated 8-10-2004 imposed an anti-dumping duty. This notification was valid for 5 years and it had expired on 8-10-2009 as provided in Section 9A(5) of the Customs Tariff Act, 1975. Only after expiry of the Notification on 13-10-2009 by Notification No. 117/2009-Cus., the Notification No. 105/2004-Cus. was extended up to 7-7-2010. She submits that once the original Notification No. 105/2004-Cus. has come to an end on expiry of 5 years the sa....

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....sed the records. We find that in the identical facts and on the legal issue, the Hon'ble Supreme Court in the case of Union of India & Anr. v. M/s. Kumho Petrochemicals Co. Ltd. (supra) decided. The relevant part of the order is reproduced below : 31. After giving due consideration to the arguments advanced by the Learned Counsel for the parties, we are inclined to agree with the High Court that proviso to sub-section (5) of Section 9A of the Act is an enabling provision. That is very clear from the language of the said provision itself. Sub-section (5) of Section 9A gives maximum life of five years to the imposition of anti-dumping duty by issuing a particular notification. Of course, this can be extended by issuing fresh not....

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.... of 'law'. Here, such a law has to be in the form of an appropriate notification and in the absence thereof the duty, which is in the form of a tax, cannot be extracted as, otherwise, it would violate the provisions of Article 265 of the Constitution of India. As a fortiorari, it becomes apparent that the Government is to exercise its power to issue a requisite notification. In this hue, the expression 'may' in the second proviso to sub-section (5) has to be read as enabling power which gives discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision. ... 36. As noticed above, the High Court has held that once the earlier Notification by whi....