2022 (10) TMI 1021

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.... learned advocate Mr.Priyank Lodha for respondent No.4. 2. In this Special Civil Application, the petitioner company has made following prayers. "[i] to set aside Order No.A/11068- 11069/2019 dated 05.07.2019 passed by Appellate Tribunal in Appeal No.399- 400/2011; [ii] to hold and declare that the subject goods namely "Extra Clear Float Glass" are covered under Notification No.4/2009-Cus. dated 6.1.2009 as amended from time to time, and they are liable for levy and collection of Anti-Dumping Duty under the above referred Notification; [iii] to prohibit respondent Nos.1 and 2, their servants and agents from clearing any consignments of Extra Clear Float Glass from any Customs stations without levying and recove....

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....Notification No.4/2009 dated 6.1.2009. The Tribunal in its order held that the Extra Clear Float Glass imported by the assessee- company were not liable to Anti-Dumping Duty. The orders passed by the authorities levying such duty came to be set aside and the said goods were directed to be assessed without levy of such duty. Appeals of the assesseecompany was allowed. In other words, the Tribunal refused to treat the Clear Float Glass and Extra Clear Float Glass to be the similar product for the purpose of Anti-Dumping Duty. 3.2 The petitioner herein is a company claiming to be the representative of the industry, who submits, while making the above prayer to set aside the order of the Tribunal passed as above and while assailing the....

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....er detailed analysis and the technical consideration, the conclusion was recorded in the said notification that, "After examining the submissions made by the applicants, responding domestic producers and other interested parties and issues raised therein; and considering the facts available on record, and its examination as above, the Authority concludes that the ECFG cannot be excluded from the scope of the product under consideration." 5.1 It was thus recommended that Extra Clear Float Glass (ECFG) cannot be excluded from the scope of the product under consideration. 5.2 It was by referring to the said notification learned advocate for the petitioner wanted this Court to hold that the decision of the Tribunal wa....

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....ed "extra clear float glass" is only a subset of the category "float glass" and logically, would attract antidumping duty and the tariff item is also the same." 3. While the non filing of appeal was sought to be justified on basis of the circular of the Finance Department dated 17.8.2011, in course of the submission, learned advocate for the respondent No.4 wanted time to take further instructions and decide the course of action. " 4. Today when the petition came up for consideration, learned advocate for the respondent submitted that it was not possible for the respondent department to prefer the appeal in view of provisions of Section 131BA of The Customs Act, 1962. Section 131BA reads as under, "SECTION 131BA. Appeal....

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....of Customs in pursuance of orders or instructions or directions issued under sub-section (1). (5) Every order or instruction or direction issued by the Board on or after the 20thday of October, 2010, but before the date on which the Finance Bill, 2011 receives the assent of the President, fixing monetary limits for filing appeal, application, revision or reference shall be deemed to have been issued under sub-section (1), and the provisions of sub-sections (2), (3) and (4) shall apply 25 accordingly."." 4.1 Learned advocate for the respondent, however, was apprised of the provisions of Sub-section (2) of Section 131BA above, that where a appeal is not filed pursuant to the orders or instructions, such non-filing of appeal in a g....