COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI Vs. SAMARTH INDUSTRIES

JUDGEMENT

(1.) This order will govern the Appeals and the Writ Petitions under Article 226, which have been heard together. Learned Counsel stated that the facts in all these matters and, the questions of law raised are similar. Hence, we propose to dispose of this batch of cases by a common judgment. For the sake of convenience, the facts in Customs Appeal 18 of 2009 are discussed.

(2.) This Appeal by the Commissioner of Customs is against an order of the Customs Excise & Service Tax Appellate Tribunal dated 1 August 2007. The Tribunal has held, inter alia, that no Antidumping duty can be levied on imports made during the period of the expiry of a provisional antidumping levy and the levy of a final antidumping duty under Rule 21 of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 ("the AntiDumping Rules"). The Appeal by the Revenue was admitted on 6 April 2009. The following substantial questions of law, as modified to elucidate the submissions urged, arise :

(3.) The learned Counsel appearing on behalf of the Revenue has submitted and this position - is not disputed by learned Counsel appearing on behalf of the Respondent that the first question of law will be dispositive of the issues that arise in the appeals filed by the Revenue. Counsel appearing on behalf of the Revenue states that the second question of law is not pressed. As regards the third and fourth questions, it is now common ground between Counsel appearing on behalf of the Revenue and Counsel appearing on behalf of the Respondents that in view of the provisions of Section 9A(8) of the Customs Tariff Act, 1975, the view which has been taken by the Tribunal is unsustainable. Sub-section (8) of Section 9A was substituted with effect from 1 January 1995 by the Finance Act (No.2), 2009 to provide that the provisions of the Customs Act, 1962 and the Rules and Regulations made thereunder including those relating to the date for the determination of the rate of duty, assessment, nonlevy, short levy, refunds, interests, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under the Section as they apply in relation to the duty leviable under that Act. In view of the amended provisions of Section 9A(8), the third and fourth questions would have to be answered in the negative. The fifth question of law is consequential and relates to the first.