TaxTMI 
TaxTMI 
2025 (8) TMI 1485
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....oms Tariff Act] for quashing the final findings dated 29.09.2022 of the designated authority published in the Gazette of India-Extra Ordinary on 29.09.2022 in the matter of anti-dumping investigation concerning the import of semi-finished ophthalmic lenses originating in or exported from China PR. The designated authority recommended definitive anti-dumping duty for five years from the date of the notification to be issued by the Central Government on the said product. The appellant has also sought the quashing of the consequential notification dated 27.12.2022 issued by the Central Government. This notification was published in the Gazette of India-Extra Ordinary on 27.12.2022. The said notification recites that the Central Government, in exercise of powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act read with rules 18, 20 and 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [the 1995 Anti-Dumping Rules], has imposed anti-dumping duty on semi-finished ophthalmic lenses for a period of five years. 2. At the time of hearing of this appeal, a pr....
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.... the words "and determined" shall be omitted; (ii) in section 9A,- (a) in sub-section (5), in the first proviso, for the words "in a review", the words "on consideration of a review" shall be substituted; (b) in sub-section (6), the words "and determined" shall be omitted; (iii) in section 9C,- (a) in sub-section (1), the words "order of" shall be omitted; (b) in sub-section (2), for the word "order", the words "determination or review" shall be substituted; (c) in sub-section (3), for the word "order", the words "determination or review" shall be substituted; (d) after sub-section (5), the following Explanation shall be inserted, namely:- 'Explanation.-For the purposes of this section, "determination" or "review" means the determination or review done in such manner as may be specified in the rules made under sections 8B, 9, 9A and 9B." 9. Learned counsel for the appellant pointed out that even though section 134 of the Finance Act, 2023 states that the amendment made to sections 9, 9A and 9C of the Customs Tariff Act are w.e.f. 01.01.1995, but when it is read with section 1(2)(b) of the Finance Ac....
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....overnment to issue any notification under section 1(2)(b) of the Finance Act, 2023 since section 134 of the Finance Act, 2023 itself provides that it shall come into effect from 01.01.1995. After the conclusion of the hearing, learned authorized representative appearing for the Central Government also submitted a synopsis and in paragraph 6 of the said synopsis, reference has been made to a letter dated 16.07.2025 sent by the Director, Tax Research Unit, wherein a distinction is sought to be made between an amendment made in the Customs Tariff Act and an amendment made in the CGST Act. It has been stated that since both, Union and States, have concurrent powers to levy and collect GST, the effective date was notified at a later date "after some changes were carried out by all the States in their State GST Acts". The submission, therefore, is that any amendment made in the Customs Tariff Act cannot be equated with an amendment made in the CGST Act. 15. The submissions advanced by the learned counsel for the appellant, learned counsel appearing for the domestic industry as also learned authorized representative appearing for the Central Government have been considered. 16. Sect....
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.... fact, section 140 of the Finance Act, 2023, which is also contained in section 1(2)(b) of the Finance Act, 2023, also seeks to amend section 23 of the CGST Act with effect from 01.01.2017 and it is reproduced below: "140. In section 23 of the Central Goods and Services Tax Act, for sub-section (2), the following sub-section shall be substituted and shall be deemed to have been substituted with effect from the 1st day of July, 2017, namely:- "(2) Notwithstanding anything to the contrary contained in sub-section (1) of section 22 or section 24, the Government may, on the recommendations of the Council, by notification, subject to such conditions and restrictions as may be specified therein, specify the category of persons who may be exempted from obtaining registration under this Act." " 23. The Central Government issued a notification dated 31.07.2023 under section 1(2)(b) to bring into force sections 137 to 162 (except sections 149 to 154) of the Finance Act, 2023 from 01.10.2023. The said notification dated 31.07.2023 is reproduced below: "NOTIFICATION New Delhi, the 5th July, 2022 No. 28/2023-Central Tax S.O. 3422(E).- In ....
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....al Government may, by notification in the Official Gazette, appoint." 29. Sections 108 of the Finance Act, 2021 amends section 7 of the CGST Act with effect from 01.07.2017. 30. The Central Government issued the following notification under section 1(2)(b) to bring into force section 108 of the Finance Act, 2021 with effect from 01.01.2022: "MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS) NOTIFICATION New Delhi, the 21st December, 2021 No. 39/2021-Central Tax S.O. 5328(E).- In exercise of the powers conferred by clause (b) of sub-section (2) of section 1 of the Finance Act, 2021 (13 of 2021), the Central Government hereby appoints the 1st day of January, 2022, as the date on which the provisions of sections 108, 109 and 113 to 122 of the said Act shall come into force. [F.No.CBIC-20006/26/2021-GST] RAJEEV RANJAN, Under Secy." 31. It is, therefore, apparent that the Central Government has, in respect of certain sections of Finance Act, 2023, Finance Act, 2022 and Finance Act, 2021, issued the relevant notifications under section 1(2)(b) of the respective Finance Ac....
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....rating this submission, learned counsel pointed out that "determination" or "review" means "determination" or "review" done in such manner as may be specified in the 1995 Anti-Dumping Rules, which includes both rule 17 which deals with final findings and rule 18 which deals with levy of duty. 36. Learned counsel for the appellant also summarized the following situations that may arise concerning the jurisdiction of this Tribunal under section 9C of the Customs Tariff Act, both pre and post amendment. Scenario Jurisdiction under Section 9C (pre and post amendment under Finance Act, 2023) I. Where Directorate General of Trade Remedies issues affirmative final findings recommending imposition of duty and the Central Government implements it by issuing customs notification. The Tribunal has jurisdiction to hear appeals in view of the constitution bench judgment of the Supreme Court in Tata Chemicals. II. Where Directorate General of Trade Remedies issues negative final findings and terminates the investigation. The Tribunal has jurisdiction to hear appeals in view of the judgment of the Delhi High Court in Jindal Poly Film Ltd. vs. De....
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....mpose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation ***** (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin***** (3) ***** (4) ***** (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension: Provided ***** Provided ***** (6) The margin of dumping as re....
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....ection 9A and sub-section (2) of the section 9B of the Customs Tariff Act, the Central Government framed the 1995 Anti-Dumping Rules. 44. The duties of the designated authority are contained in rule 4 of the 1995 Anti-Dumping Rules and the relevant portion is reproduced below: "4. Duties of the designated authority.- ***** (d) to recommend to the Central Government- (i) the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty;" 45. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. Rule 6 deals with the principles governing investigation. Rule 10 deals with determination or normal value, export price and margin of dumping and rule 11 deals with determination of injury. 46. Rule 17 deals with final findings of the designated authority. It is reproduced below: "Final findings.- (1) The designated authority shall, within one year from the date of....
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....no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive antidumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry, within a reasonable period of time prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry." 49. Annexure-I to the 1995 Anti-Dumping Rules deals with the principles governing the determination of normal value, export price and margin of dumping. It provides that the designated authority while determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of the Annexure. 50. Annexure-II to the 1995 Anti-Dumping Rules deals with the principles for determination of injury. It provides that the designated authority while determining the injury or threat of....
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....f the Central Government, on a consideration of review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension:" (emphasis supplied) 58. The amended sub-section (6) of section 9A of the Customs Tariff Act is reproduced below: "9A(6) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty." ....
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.... ***** Explanation. - For the purposes of this section, "determination" or "review" means the determination or review done in such manner as may be specified in the rules made under section 8B, 9, 9A and 9B." (emphasis supplied) 62. It would, therefore, be necessary to examine the meanings assigned to the words ascertained and determined. The word "determination" pre-supposes application of mind and expression of conclusion. It connotes the determination and not a mere opinion or finding. 63. In Law Lexicon by P. Ramanatha Aiyar, Second Edition, it is stated: "Determination or order. The expression "determination" signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression "order" must have also a similar meaning, except that it need not operate to end the dispute, Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills v. Lakshmi Chand, : (1963)ILLJ524SC . [Constitution of India Article 136]" 64. In Black's Law Dictionary, 6th Edition, it is stated: A "determination" is a "final judgment" for purpo....
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....eriod of imposition of anti-dumping duty for a further period of five years on a consideration of review. 70. Under the amended section 9C of the Customs Tariff Act, an appeal lies to the Tribunal against the determination or review, which powers as noticed above are exercised by the designated authority. 71. The Explanation added to section 9C of the Customs Tariff Act by the Finance Act, 2023 has defined determination or review to mean the determination or review done in such manner as may be specified in the 1995 Anti-Dumping Rules. 72. Rule 17(1) of the 1995 Anti-Dumping Rules provides that the designated authority shall within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped into India and submit to the Central Government its final finding. 73. Rule 18 of the 1995 Anti-Dumping Rules provides that the Central Government may impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 74. Rule 23 of the 1995 Anti-Dumping Rules deals with....
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.... of the same probably the Court was led to believe that the appeal had been filed before the issuance of the notification of determination. Therefore, the notice was issued in the SLPs. When the matter was heard by a two-Judge Bench on 5-3-2002, the following order was passed: "It is submitted by Mr. Mukul Rohtagi, learned Additional Solicitor General appearing for the respondents that against the impugned order of the CEGAT a two Judge Bench of this Court by order dated May 11, 2000 declined to entertain the S.L.Ps. filed by another party. In respect of the same impugned order S.L.Ps. Nos. 9423-9432/2000 filed by the petitioner, another two Judge Bench by Order dated August 24, 2000 held that the S.L.Ps. would be maintainable and ordered notice. In view of this apparent conflict, submits the learned Additional Solicitor General, the cases may be placed before a three Judge Bench. Mr. Shanti Bhushan, learned senior counsel and the other senior counsel also adopted the same submission. Mr. P. Chidambram, the learned seniors counsel appearing for the petitioner submits that a writ petition is already filed therefore this question may not be relevant. In view of the importanc....
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....before the Tribunal was not only the determination made by the designated authority but also the consequential customs notification dated 27.10.1998 imposing anti-dumping duty. The bench observed that this fact was not brought to the notice of the earlier bench and even the order of the Tribunal that was impugned did not refer to the customs notification dated 27.10.1998. The subsequent division bench, therefore, referred the matter to a three Judge bench of the Supreme Court. The three Judge bench of the Supreme Court noted that in the order dated 24.08.2000 (by which notice was issued in the second Special Leave Petition) it was observed that determination as contemplated by rule 18 of the 1995 Anti-Dumping Rules had taken place with issuance of the notification dated 27.10.1998 and, therefore, the appeal would be maintainable. The three Judge bench of the Supreme Court held that the appeal before the Tribunal was maintainable since the challenge before the Tribunal was to the determination by issuance of the notification dated 27.10.1998 by the Central Government. It is, therefore, clear that what was in issue before the Supreme Court was whether an appeal would lie to the Tribu....