ADD Not Leviable In Period Between Expiry Of Provisional ADD Notification And Final Notification: Gujarat High Court

The Court dismissed the contention made by the revenue department that since the final Anti-Dumping Duty Notification was issued with effect from the same date as the Provisional Duty Notification, levying duty at the same rate as specified in the Provisional Duty Notification, the goods imported in the interregnum period would attract duty.

The bench of Justices N.V. Anjaria and Bhargav D. Karia observed that once a matter is remitted back by the appellate authority to reconsider the refund claims of the importer, the adjudicating authority cannot ignore the order of the higher authority and sit tight on the matter by not deciding the same.

A Provisional Anti- Dumping Duty Notification No.15/2014, dated 11.4.2014, was issued by the Central Government, imposing Provisional Anti-Dumping Duty on imports. This was followed by a final Anti-Dumping Duty Notification No.21/2015, dated 22.5.2015, imposing Anti- Dumping Duty at the same rate as specified in the Provisional Duty Notification.

The petitioner- Perfect Importers and Distributors (India) Pvt. Ltd., filed Bills of Entry for clearance of the goods imported by it. Anti-Dumping Duty was imposed on the imported goods as per the final Anti-Dumping Duty Notification No.21/2015.

The petitioner filed an application before the adjudicating authority/Assistant Commissioner of Customs seeking refund of the Anti-Dumping Duty paid by it, contending that the goods were imported by it during the intervening period between the expiry of the Provisional Anti-Dumping Duty Notification and the final Notification. The adjudicating authority rejected the refund claim of the petitioner, holding that since the petitioner had failed to challenge the assessment orders by which the Anti-Dumping Duty was imposed, the refund cannot be granted. Against this, the petitioner filed an appeal before the Commissioner (Appeals), who allowed the appeal and remitted the matter back to the adjudicating authority.

After the adjudicating authority/Assistant Commissioner failed to pass an order regarding the petitioner’s claim for refund, despite the directions issued by the Commissioner (Appeals), the petitioner filed a writ petition before the Gujarat High Court.

The High Court observed that the petitioner paid the Anti-Dumping Duty to clear the goods imported by it on 21.05.2015. Further, it noted that Notification No.15/2014, dated 11.4.2014, which levied a Provisional Anti-Dumping Duty for a period of six months, was not applicable on the relevant date of import.

To this, the revenue department argued before the Court that since the final Anti-Dumping Duty Notification No.21/2015, dated 22.5.2015, was issued with effect from 11.04.2014, the petitioner was liable to pay the Anti-Dumping Duty on the imports made by it.

Dismissing the contention made by the revenue department, the High Court ruled that as per the law laid down by the Apex Court in CIT versus G.M. Exports (2015), imports made during the period between the expiry of the provisional Anti-Dumping Duty Notification and the Notification imposing final Anti-Dumping Duty, would not attract Anti-Dumping Duty.

The Supreme Court in CIT versus G.M. Exports (2015) had held that if the Anti-Dumping Duty is levied in the interregnum period as well, it would destroy the scheme of the Second Proviso to Rule 13 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, by extending the period of provisional duty notification beyond a period of 6 months, which cannot be allowed.

The High Court reckoned that the Commissioner of Customs (Appeals), after noting the decision of the Supreme Court in CIT versus G.M. Exports (2015), had remitted the refund claim of the petitioner back to the adjudicating authority/Assistant Commissioner of Customs.

Further, the bench noted that the adjudicating authority, by failing to pass an order on the petitioner’s refund claim on the ground that it was not entitled to refund, had attempted to evade the directions issued by the appellate authority. It added that the adjudicating authority cannot ignore the order of the higher authority and sit tight on the matter by not deciding the same.

The Court took note that the adjudicating authority had reiterated before the High Court that the order passed by it rejecting the petitioner’s refund claim was just and proper, despite the fact that the same order was quashed and set aside by appellate authority. The Court remarked that such attitude and action of the adjudicating authority was contrary to judicial propriety.

Observing that the Anti- Dumping Duty was not in force when the petitioner imported the goods, the Court thus reckoned that the bills of entry were filed by the petitioner without inclusion of Anti- Dumping Duty. Further, the petitioner was compelled to pay such duty only after filling the bills of entry so as to release the goods. Thus, the Court concluded that the assessment orders in form of bills of entry were not required to be modified or reassessed as the same were filed without inclusion of Anti- Dumping Duty.

Therefore, the Court allowed the writ petition, directing the Assistant Commissioner of Customs to issue refund to the petitioner, along with interest.

Case Title: Perfect Importers and Distributors (India) Pvt. Ltd. versus Union of India

Case Citation: 2023 Livelaw (Guj) 1

Counsel for the Petitioner: Mr. Hasit Dave

Counsel for the Respondent: Mr. Nikunt K Raval

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