2023 (1) TMI 999

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....the said import, the Anti-dumpingDuty was levied as per the Notification No. 117/2009-Cus., dated 13-10-2009 extending the Notification No. 105/2004-Cus., dated 8-10-2004. Subsequent to such assessments and clearances of the goods, Less Charge Demand/SCN dtd. 17.11.2009 was issued to the Appellant under Section 28 of the Customs Act, 1962 demanding Anti -dumping duty alognwith interest. In adjudicating, Ld. Additional Commissioner of Customs vide OIO dtd. 02.08.2011 confirmed the demand. Being aggrieved with the order Appellant filed appeal before the Commissioner (Appeals), who vide impugned Order-In-Appeal dtd. 30.07.2012 upheld the Order. Therefore Appellant filed the present appeal before us. 2. Shri J.C. Patel, Ld. Counsel appearing....

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....on'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 notification. However, the words 'unless revoked earlier' in sub-section (5) clearly indic....

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.... 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 which anti-dumping duty was extended by five years, i.e. up to January 1, 2014, expired, the Ce....