The Bombay High Court directed to appeal before the Customs Excise Service Tax Appellate Tribunal (CESTAT) against the anti-dumping duty imposed based on lapsed excise notification.
M/s. Sarla Performance Fibres Ltd, the petitioner challenged the issue on the legality of the impugned notifications dated 13 January 2012 and 19 January 2017 issued by the Government of India in exercise of the provisions of Section 9A(5) of the Customs Tariff Act, 1975 imposing antidumping duty in respect of goods in question, which are Nylon Filament yarn, as described in the said notifications.
The petitioner has pointed out in the memo of the petition that a show cause notice was issued to the petitioner on 27 December 2016, to which a reply was submitted by the petitioner on 30 March 2017 and 20 April 2017. After a personal hearing being granted to the petitioner, on 18 December 2017, the Commissioner of Central Excise and GST passed an order imposing on the petitioneran anti-dumping duty amounting to Rs.4,31,05,000/- based onthe impugned notification.
It was not in dispute that the petitioner has filed an appeal against the said order before the Customs, Excise and Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad (“CESTAT”) on 23 February 2018 and certainly the challenge to the orders passed by the Commissioner are on all grounds including applicability of the notifications.
The petitionersubmitted that the notifications are required to be struck down by the court, which is not the power conferred with the Tribunal. It was submitted that it isnow held to be a settled principle of law that when the primary notification itself has lapsed on the expiry of the period as specified in the notification, there would be no question of an amendment being caused to the non-existing notification or in other words, the amendment was not to be carried out during the lifetime of the notification, was the view taken by the Supreme Court, thereby confirming the decision of the Delhi High Court in the case of Kumho Petrochemicals Co. Ltd. vs. Union of India.
The Delhi High Court has been upheld by the Apex Court in Union of India .vs. M/s. Kumho Petrochemicals Co. Ltd. We find that the Delhi High Court and the Supreme Court did not have to discuss the applicability of unjust enrichment in respect of anti-dumping duty collected under the Customs Tariff Act, 1975.
It was found that it merely states that the petitioners are entitled to a refund of the amount of anti-dumping duty paid till date would not do away with the requirement of the petitioner’s therein satisfying the doctrine of unjust enrichment, if at all applicable in the facts of that case.
A division bench of Justice G S Kulkarni & Justice Jitendra Jain observed that the CESTAT has already seized the matter. Keeping open all contentions of the petitioner on the challenge as raised in the petition, the Court disposed of the petition with liberty to the petitioner to raise the contentions before the CESTAT and/or if the need arises file appropriate proceedings.
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