Attempt to Avail Refund of ADD paid: Bombay HC dismisses Writ Challenging Customs Anti Dumping Duty Notifications [Read Order]

In a recent case, the Bombay High Court while dismissing the writ petition challenging the custom Anti Dumping Duty Notification on attempt to avail the refund of Anti Dumping Duty paid .

The writ petition was filed by the Sansar Texturisers Pvt. Ltd, who engaged in the business of importing Nylon Filament yarn . During the period from 13 January 2012 to 12 January, 2018, the petitioner had imported such materials from different countries, being the period covered under the impugned notifications issued in exercise of powers under Section 9A(1) and 9A(5) of Customs Tariff Act, 1975 in regard to the levy of anti dumping duty as paid by the petitioner.

According to the petitioner, anti-dumping duties were imposed on the import of certain nylon filament yarn from the People's Republic of Korea, Chinese Taipei, Malaysia, Indonesia, and Thailand.

on 13 January, 2012, respondent no. 1 issued the first notification No. 3 of 2012 anti-dumping duty on import of said materials from the People's Republic of China, Chinese Taipei, Malaysia, Indonesia, Thailand and People’s Republic of Korea was re-imposed

As per Clause 2 of this Notification, the anti-dumping duty was imposed for a period of five years from the date of its issue i.e. 13 January, 2012 and hence such notification was to lapse on 12 January, 2017.

thereafter on 19 January, 2017, respondent no. 1 issued the second impugned notification i.e. No. 4 of 2017, which inter alia recorded that the Designated Authority vide notification no. 15/17/2016- DGAD dated 9 January, 2017 had initiated a sunset review of anti-dumping duty imposed by notification no 3 of 2012 and recommended for extension of the anti-dumping duty

Notification No. 3 of 2012 was to remain in force up to and inclusive of 12 January, 2018. It is the petitioner’s case that thereafter on 5 January, 2018, respondent no. 1 by notification no. 15/17/2016-DGAD concluded the sunset review of antidumping duty initiated on an application of the domestic industry.

It is contended that by the said notification, the authority did not recommend continuation of the anti-dumping duty on the imports of subject goods from the said countries.

Therefore the case of the petitioner is that the impugned notifications and subject matter of challenge as set out in the prayers as made in the petition were issued by respondent No. 1 without authority of law inasmuch as, as per section 9A(5) of the Customs Tariff Act, the anti-dumping duty could be imposed for a period of five years.

Further the petitioner submitted that it is only before the expiry of the notification, the Designated Authority could review whether the same should be extended for a further period of five years or not and more particularly considering the provision of section 9A(5).

The petitioner submitted that notifications are required to be held to be contrary to law and being illegal, they are required to be quashed and set aside. Consequently, the petitioner is held to be entitled to the refund of anti-dumping duty.

When the writ petition came before the bench for hearing counsel Naresh Jain appeared on behalf of the petitioner. Who relied upon the decision of the Supreme Court in Union of India and Ors. Vs. Kumho Petrochemicals Company Limited and Ors. argued that the notifications are bad and illegal.Thus the petitioner would be entitled to the refund of duty, if the petitioner succeeds in the principal challenge, namely, in the event the notifications are declared to be bad.

The bench during the proceedings observed that the primary intention of the petitioner is to seek refund of money from the Government of India of the anti-dumping duty paid during the period 13 January, 2012 to 12 January, 2018 .

Relied upon the decision of Suganmal Vs. State of Madhya Pradesh & Ors the Constitution Bench of the Supreme Court the court observed that the petition under Article 226 of the Constitution solely praying for issue of a writ of mandamus directing the State to refund the money, is not ordinarily maintainable for the simple reason that a prayer for such a refund can always be made in a suit against the authority which had illegally collected money as a tax.

After examining the facts and arguments of both parties, a division bench of Justice G. S. Kulkarni and Justice Firdosh P. Pooniwalla, observed that petitioner in the present case has paid the duty under any mistake.Therefore the court dismisses the Writ Challenging The Customs Anti Dumping Duty Notifications issued by the government.

Saket R. Ketkar and Karan Adik appeared for the respondent.

To Read the full text of the Order CLICK HERE

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