Anti Dumping Duty - No Resurrection - Retrospective extension held illegal - HC
WHAT DDT has been shouting from the rooftop for the last nine years has been heard - not by the Board, but by the High Court.
By Notification No. 6/2014-Cus (ADD) dated 23.01.2014, the Government extended by one year the anti dumping duty on Acrylonitrile Butadiene Rubber imposed by Notification No. 1/2009-Cus dated 02.01.2009 which expired on 1.1.2014.
DDT then reported, (DDT 2280)
RESURRECTION of dead notifications is a regular practice with the CBEC and this is one practice in which DDT has miserably failed to wake up the babus before the expiry of anti dumping notifications. The anti dumping duty on Acrylonitrile Butadiene Rubber imposed by Notification No. 1/2009-Cus dated 02.01.2009, had expired on 01.01.2014 and now they have extended it till 01.01.2015 after being dead for 23 days.
Such blatant illegal actions of the Board cannot go unquestioned till eternity. Recently some importers challenged such retrospective extension by Notification and the Delhi High Court last week struck down No. 6/2014-Cus (ADD) dated 23.01.2014 as illegal.
The Court held that the levy of anti-dumping duty ended on 01-01-2014, with the lapse of the original notification. The second proviso to Section 9A (5) precluded the Central Government from continuing the levy beyond that period or date, except to the extent its conditions were fulfilled, i.e. if the levy of the duty were to have been notified before such date. In such cases, the power under the second proviso to Section 9A(5), after expiry of the date of the original notification, is unavailable.
The Court finally held: the levy of anti-dumping duty through the impugned notification of 23-01-2014 is without authority of law. The said notification is declared illegal and hereby set aside. The petitioners are entitled to refund of the amounts paid till date.
Now what happens - Most probably the Government will not concede a mistake or a defeat and will gladly waste the taxpayers' money in taking this matter to the Supreme Court. After all, the Revenue Department works on the policy that if they make a mistake, you pay for it; if they forget to do what they are expected to do, you are punished. Whichever party comes to power, the babus know how to terrorise the taxpayer.
The CBEC need not have faced the embarrassment of having its notification declared illegal by the High Court. Board very well knew this situation. In Circular No. 28/2011-Cus, dated: 8.7 2011, the Board had clarified that:
On a plain reading of Section 9A (5) of the Customs Act, 1975, it is evident that definitive/final anti-dumping duty can be collected only for a period of five years from the date of its imposition.
Generally, the anti dumping levy notified in pursuance of final findings of the Director General (AD) is effective from the date of imposition of provisional duty and therefore the period of five years is to be computed from such date.
Collection beyond that period is permissible only when the said levy is extended by a notification either for further period of five years (in pursuance of the final findings of the Designated Authority in a Sun Set Review) or for one year (during the pendency of Sun Set Review).
Thus, a definitive/final anti-dumping duty can be collected beyond the stipulated period only when a notification extending the levy has been issued, before the expiry of the parent notification.
Unless such revalidation or extension is carried out by a fresh notification, the collection of final anti-dumping duty should cease on the completion of five years.
Where the findings in a review are notified after the lapse of the parent notification, the notification in such cases would be effective prospectively from the date of issue of such notification.
In DDT 1649, we praised the Board and said,
For the last six years, DDT has been relentlessly pointing out the fact that the Government had been with routine regularity extending the validity of dead anti dumping notifications and we had been questioning as to what would be the position during the period between lapsing of an anti dumping notification and its resurrection. We have been told by several Customs officers that despite lapsing of the notifications, they would collect the anti dumping duty, on the assumption that Government would resurrect them and at that point of time, it would be impossible to collect the differential duty. DDT is extremely happy to report that Board has reacted favourably.
Board deserves all praise for this very logical and reasonable clarification. So, now for the failure of the Board, the importer will not be punished.
But the notification factory in the Board has no respect even for the Board. They flout Board instructions with scant respect and expect the field to follow them. After the Board issued the above mentioned Circular, they resurrected 35 Notifications. In this year alone, in the last six months, they resurrected six dead notifications. This is how the Board works. Now all those notifications, at least the recent ones can be challenged in the High Courts and litigation can continue merrily for the next decade or so after which they will persuade a brilliant Finance Minister to get their mistakes retrospectively rectified. That's it; retrospective legislation is all about rectifying the mistakes of the draftsmen - retrospectively - ULTIMATELY WE PAY!
We bring you this latest order of the High Court today. Please see BREAKING NEWS.