Appeal Maintainable against Anti-Dumping Duty on Ophthalmic Lenses as Finance Act, 2023 Amendments Not Yet in Force: CESTAT [Read Order]

The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Principal Bench, New Delhi, held that an appeal challenging anti-dumping duty on semi-finished ophthalmic lenses is maintainable since Section 134 of the Finance Act, 2023, amending Sections 9A and 9C of the Customs Tariff Act, 1975, has not yet been brought into force by a notification of the Central Government.

The assessee, Essilorluxottica Asia Pacific Pte Ltd. filed an appeal under Section 9C of the Customs Tariff Act, 1975, assailing the final findings dated September 29, 2022, of the Designated Authority recommending the imposition of definitive anti-dumping duty on imports of semi-finished ophthalmic lenses from China PR, and the consequential Customs Notification No. 32/2022-Customs (ADD) dated December 27, 2022, which imposed such duty for five years.

During the hearing, the Central Government’s authorised representative, Shri Rakesh Kumar, raised a preliminary objection, contending that post the amendments made by Section 134 of the Finance Act, 2023, the appeal would not be maintainable before the Tribunal.

Senior counsel Shri V. Lakshmikumaran, representing the appellant, argued that the amendments under Section 134 of the Finance Act, 2023, had not come into force, as no notification under Section 1(2)(b) of the Finance Act had been issued. He emphasized that, in the absence of such a notification, the pre-amendment provisions of Sections 9A and 9C of the Customs Tariff Act continue to operate, preserving the Tribunal’s jurisdiction.

He further cited precedents under the Finance Acts of 2021 and 2022, wherein similar provisions came into effect only upon issuance of notifications. Counsel also relied on the Supreme Court judgment in Tata Chemicals Ltd. v. Union of India (2008), holding that an appeal lies to the Tribunal against the Central Government’s determination imposing anti-dumping duty.

On the other hand, the Department contended that since Section 134 states that amendments take effect from January 1, 1995, no notification was necessary. It relied on a clarification from the Tax Research Unit distinguishing between amendments to the Customs Tariff Act and those to the CGST Act.

The Bench of Justice Dilip Gupta (President), Binu Tamta (Judicial Member), and P.V. Subba Rao (Technical Member) rejected the Department’s contention. The Tribunal observed that Section 1(2)(b) of the Finance Act, 2023, explicitly mandates that Sections 128 to 163 (including Section 134) shall come into force on a date appointed by the Central Government through notification in the Official Gazette.

Since no such notification had been issued, the Tribunal ruled that the amendments made to Sections 9A and 9C of the Customs Tariff Act have not come into effect. Therefore, the pre-amended provisions under which appeals against government notifications imposing anti-dumping duties are maintainable before the CESTAT, remain applicable.

The Bench further held that once notified, the amendments would transfer appellate jurisdiction from the Tribunal to appeals against determinations or reviews by the Designated Authority; however, until that occurs, existing appeal rights under Section 9C subsist.

Holding the appeal maintainable, the Tribunal directed that the matter be listed for further hearing on September 23, 2025.

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