The court held that if the DGAD's final findings establish no injury to the domestic industry and no justification for the continued imposition of anti-dumping duty, the refund is permissible regardless of the savings clause in the rescission notification.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The following proposed substantial questions of law arise for determination of the present appeal.

(i) Whether Tribunal is correct in allowing Refund, whereas as per Rule 21 of Customs Tariff (Identification, Assessment And Collection of Anti-Dumping Duty On Dumped Articles And For Determination of Injury) Rules, 1995, there is no provision of Refund in the case of Review of Anti Dumping Duty under Rule 23 ibid?

(ii) Whether Tribunal is correct in allowing Refund, whereas the conditions of Section 9AA of Customs Tariff Act, 1995 and Rule 21 A of Customs Tariff (Identification, Assessment And Collection Of Anti-Dumping Duty on Dumped Articles And For Determination Of Injury) Rules, 1995 has not been fulfilled?

(iii) Whether Tribunal is correct in Relying upon the Madras high court judgment in the case of Vetcare organics, whereas the Judgment has been passed different set of facts in the case of Advance licens and it is specifically ordered that Notification is ultra vires in so far as the petitioner is concerned?

2. The present tax appeal, filed under Section 130 of the Customs Act, 1962 (for short, “the Act”), emanates from the judgment and order dated 14.09.2023 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal, Ahmedabad (for short, “CESTAT) in Customs Appeal No.11051 of 2015-DB.

3. That M/s. Century Plyboards had claimed Refund of Anti-Dumping Duty paid on imports for the period 2010-11 & 2011-12 in respect of import of Phenol imported from Korea RP, Taiwan & USA on 18.05.2012 to the Deputy Commissioner of Customs, Kandla who rejected the refund claim and passed Order-in-Original (for short, “the OIO”) No. KDL/DC/NC/726/REF/2014 dated 20.06.2014. According to the Respondent herein, they were eligible for refund of excess anti-dumping paid in view of the following:

3.1 The Directorate General of Anti-dumping and Allied Duties (for short, “the DGAD”) vide Final Findings dated 07.01.2008 recommended the imposition of anti-dumping duty on phenol originating in or exported from Korea RP, Taiwan and USA. The recommendation of the DGAD was Implemented by the Ministry of Finance vide Customs Notification No.30/2008-Cus dated 03.03.2008.

3.2 The Central Government also notified the Refund of Anti-Dumping Duty (Paid in Excess of Actual Margin of Dumping) Rules, 2012 on 19.01.2012 vide Notification No.05/2012. Section 9A of the Customs Tariff Act, 1975 lays down the overall mandate of imposition of anti dumping duty. It states that where any article from any country or territory to India Is imported at less than its normal value, then upon the importation of such articles into India, the Central Government cannot, by notification, impose an anti-dumping duty in excess of the margin of dumping in relation to such article. In respect of imports of phenol originating in or exported from Taiwan and USA, the DGAD vide final Findings dated 09.02.2012 determined for the period of Investigation from January 1, 2010 to December 31, 2010 that imports of phenol from Taiwan and USA were at lower dumping margin with no Injury to the Domestic Industry and recommended the withdrawal of levy of anti dumping duty.

3.3 The said determination of lower dumping margin and negative injury was done by DGAD vide its Final Findings No.15/31/2010-DGAD dated 09.02.2012 in mid-term review in respect of imports of phenol originating in or exported from Ta