Anti-Dumping Duty leviable on Reflective Glass: 04/01/2009 to 22/05/2009

Puthuval Associates Vs Commissioner of Customs (CESTAT Bangalore)

The case of Puthuval Associates vs. Commissioner of Customs revolves around the imposition of anti-dumping duty on green reflective glass during the period from January 4th to May 22nd, 2009.

The appellant, engaged in trading reflective glass, imported Dark Green Reflective Glass during the mentioned period. The Department levied anti-dumping duty on these imports citing Notification No.4/2009-Cus, which did not exclude reflective glass from its purview, contrary to Notification No.165/2003. The appellant contended that the absence of specific mention of reflective glass in the former notification rendered it ultra vires of Section 9A(5) of the CTA, 1975.

Conversely, the Revenue argued that the duty was rightly imposed as reflective glass was not excluded under Notification No.4/2009-Cus They cited legal precedents to support their stance, emphasizing the clarity of the notification’s language.

CESTAT Bangalore, referencing Supreme Court judgments, upheld the Commissioner(Appeals)’s decision, emphasizing the importance of interpreting exemption notifications strictly. As reflective glass was not mentioned in Notification No.4/2009-Cus, the benefit of exemption did not apply.

FULL TEXT OF THE CESTAT BANGALORE ORDER

These three appeals are filed against Order-in-Appeal No.173/2011 to 177/2011 dt. 30/09/2011 passed by Commissioner of Customs(Appeals), Cochin.

2. Brief facts of the case are that the appellant is a proprietary concern engaged in the business of trading of Reflective Glass falling under Chapter 70 of Customs Tariff Act, 1975. The appellant had imported Dark Green Reflective Glass of 4 mm thickness from one M/s. Qingdao Runwei Glass Co. Ltd., PRC China and filed Bills of Entry NO.238715 dt. 06/01/2009, 239789 dt. 24/01/2009, 239976 dt. 02/02/2009, 243602 dt. 15/04/2009, No.243603 dt. 15/04/2009, No.244014 dt. 21/04/2009, No.245807 dt. 18/05/2009 and No.245808 dt. 18/05/2009 and M/s. Bright Glass Traders filed Bill of Entry No.243284 dt. 06/04/2009. The said Bills of Entry had been assessed by the Department and anti-dumping duty was levied and collected observing that even though Notification No.165/2003 -Cus. dt. 12/11/2003 excluded levy of anti-dumping duty on the item viz. reflective glass; however in Notification No.4/2009-Cus dt. 06/01/2009, there has been no such exclusion for reflective glass. Consequently, the duty of Rs.10,32,527/-; No.10,32,527/- and Rs.3,03,440/- has been confirmed by the adjudicating authority. Aggrieved by the said order, the appellants preferred appeals before the Commissioner(Appeals), who in turn, rejected their appeals. Hence, the present appeals.

3. The learned advocate for the appellants has submitted that the goods in question i.e. Dark Green Reflective Glass fall outside the scope of levy of anti-dumping duty under Notification No.4/2009-Cus. He has submitted that the said notification has been read and understood in the light of Section 9A of the Customs Tariff Act, 1975 (CTA, 1975 for short), Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. On the basis of complaint by domestic industry, anti-dumping investigation concerning imports of float glass from China and Indonesia has been initiated by the Government of India vide Notification No.14/19/2002-DGAD and consequently Customs Notification No.165/2003 dt. 22/08/2003 was issued by the Government of India whereby reflective glass and processed glass meant for decorative, industrial or automotive purposes were excluded from the purview of anti-dumping duty for a period of 5 years. The review proceedings were initiated on 13/12/2007 and the comments of the designated authority dt. 02/12/2008 recommended continuation of anti-dumping duty on goods as provided in Notification No.165/2003. Pursuant to the sunset review, Notification No.4/2009 dt. 06/01/2009 was issued. However, in the said notification, the term “reflective glass” was not mentioned even though the designated authority recommended to carry out the anti­dumping duty strictly on the goods mentioned under Notification No.165/2003. He has submitted that the Central Government by Notification No.4/2009 dt. 06/01/2009 could only extend the period of imposition and not widen the scope of original proceedings relating to imposition of levy. It is his argument that if the Notification No.4/2009 is interpreted to include reflective glass under the purview of anti-dumping duty which was originally excluded by Notification No.165/2003, then the same would rendered the Notification No.4/2009 ultra vires of Section 9A(5) of the CTA, 1975. He has submitted that the subsequent Notification No.51/2009-Cus dt. 22/05/2009 excluded from the scope of levy of ANTI DUMPING DUTY on float glass by restoring the position prior to 04/12/2009. It is his contention that the subsequent notification is clarificatory in nature; hence retrospective in application. In support, the learned advocate referred to the judgment of Larger Bench in the case of Fibre Foils Limited Vs. CCE, Mumbai [2006(202) ELT 254 (Tri. LB)], wherein it has been held that subsequent amendment will be retrospective when the benefit it seeks to extend is already available on the interpretation of existing legal provisions and the amendment merely clarifies it. It is his contention that the Notification No.4/2009 or 51/2009 were issued in pursuance to the final findings of the designated authority which was in conformity with the earlier Notification No.165/2003. In such circumstances, Notification No.51/2009 would prevail over Notification No.4/2009. Further he has supported the judgment of the Hon’ble Supreme Court in the case of Government of India Vs. Indian Tobacco Association [2005(187) ELT 162 (SC)] and CC(Import), Mumbai Vs. Dilip Kumar and Company [2018(361) ELT 577 (SC)].

4. Per contra, the learned AR for the Revenue reiterated the findings of the learned Commissioner(Appeals). He has submitted that all the imports are reflective float glass from China during the period January 2009-May,2009. He has submitted that anti-dumping duty was leviable on the goods as per Notification No.4/2009-Cus dt. 06/01/2009 which amended earlier Notification No.165/2003-Cus. Even though Notification No.165/2003 excluded reflective glass from its scope, however, there was no such exclusion for reflective glass in Notification No.4/2009 dt. 06/01/2009. Referring to the judgment of the Kerala High Court in the case of K. Kochumon Vs. UOI [2011(273) ELT 187 (Ker.)], he has submitted that the Hon’ble High Court has observed that prima facie, he was not satisfied that reflective glasses are excluded from the description of float glass in respect of which anti-dumping duty was levied. Accordingly, he has rejected the contention of the petitioner that levy of anti­dumping duty is without jurisdiction and dismissed the writ petition. Further referring to the judgment of the Hon’ble Supreme Court in the case of CC(Import), Mumbai Vs. Dilip Kumar and Company (supra), he has submitted that since the nature of the Notification No.4/2009 is clear, therefore benefit to import of reflective glass being not excluded from the scope of anti-dumping duty levy till issuance of Notification No.51/2009 dt. 22/05/2009, the anti dumping duty is rightly collected by the Department on reflective glass imported by the appellants.

5. Heard both sides and perused the records.

6. The short question involved in the present appeals is whether anti-dumping duty is leviable on the product viz. reflective glass during the period 04/01/2009 to 22/05/2009.

7.1. Undisputedly, on the basis of the objections of the All India Float Glass Manufacturers Association, anti dumping duty was imposed on “float glass of thickness 2mm to 12mm (both thickness inclusive) of clear as well as tinted variety (other than green glass) but not including reflective glass, processed glass meant for decorative, industrial or automotive purpose”, by issuance of Notification No.165/2003 dt. 12.11.2003 w.e.f. 07.01.2003. After sunset review and consequently the recommendation of the designated authority, Notification No.4/2009 has been issued, which reads as follows:-

Anti-dumping duty on Float glass of specified quality, originating in, or exported from, China and Indonesia

Whereas, the Designated Authority, vide its Notification No. 15/1/2007- DGAD, dated the 13th December, 2007, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 13th December, 2007 had initiated a sunset review in the matter of continuation of anti-dumping on imports of Float Glass of thickness 2 mm to 12 mm (both inclusive) of clear as well as tinted variety (other than green glass) but not including processed glass meant for decorative, industrial or automotive purposes (hereinafter referred to as the subject goods), falling under heading 7005 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from, the Peoples’ Republic of China (in short ‘China PR’) and Indonesia (hereinafter referred to as the subject countries), and imported into India, imposed vide notification of the Government of India, Ministry of Finance (Department of Revenue), No. 165/2003-Customs, dated the 12th November, 2003 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. No. 887(E) of the same date;

And whereas, the Central Government has extended the anti-dumping duty on the subject goods, originating in, or exported from, the subject countries vide notification of the Government of India, Ministry of Finance (Department of Revenue), No. 4/2008-Customs, dated the 4th January, 2008, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. No. 12(E) of the same date, up to and inclusive of the 6th January, 2009;

And whereas, in the matter of sunset review of anti-dumping on import of the subject goods, originating in, or exported from the subject countries, the Designated Authority vide its final findings No. 15/1/2007-DGAD, dated the 2nd December, 2008, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 2nd December, 2008 has come to the conclusion that –

(i) The subject goods are entering the Indian market at dumped prices and dumping margins of the subject goods imported from China PR are substantial and above de minimis;

(ii) The subject goods are likely to enter the Indian market at dumped prices and the likely dumping margins in respect of imports from China PR and Indonesia is substantial and above de minimis;

(iii) The subject goods are likely to enter Indian market at dumped prices, should the present measures be withdrawn;

(iv) Even though the domestic industry has improved its performance during the POI, the withdrawal of the existing anti-dumping measure on subject goods from subject countries is going to cause a substantial injury to the domestic industry. Further, should the present anti-dumping duties be revoked, injury to the domestic industry is likely to intensify;

and has recommended continued imposition of the anti-dumping duty on the subject goods originating in, or exported from, the subject countries in order to remove injury to the domestic industry;

Now, therefore, in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975) read with rules 18 and 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 165/2003-Customs, dated the 12th November, 2003, except as respects things done or omitted to be done before such supersession, the Central Government, after considering the aforesaid findings of the Designated Authority, hereby imposes an anti-dumping duty on the imports into India of subject goods falling under Heading 7005 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) at an amount, which is equal to, –

(a) US $ 133 per metric tonne in case of imports of subject goods originating in, or exported from, China PR; and

(b) US $ 81.21 per metric tonne in case of imports of subject goods from Indonesia, except that in respect of imports from PT Mulia Glass, Indonesia (exporter), the anti-dumping duty shall be levied at an amount which is equal to US $ 71.16 per metric tonne.

2. The anti-dumping duty imposed under this notification shall be effective for a period of five years (unless revoked, superseded or amended earlier) from the date of publication of this notification in the Official Gazette and shall be paid in Indian currency.

Explanation. – For the purpose of this notification, rate of exchange applicable for the purposes of calculation of the anti-dumping duty under this notification shall be the exchange rate specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue) issued from time to time, in exercise of powers conferred under sub-clause (i) of clause (a) of Explanation to section 14 of the Customs Act, 1962 (52 of 1962) and the relevant date for determination of the rate of exchange shall be the date of presentation of the “bill of entry” under section 46 of the said Customs Act.

[Notification No. 4/2009-Cus., dated 6-1-2009]

7.2. Subsequently, the said notification was amended by Notification No.51/2009-Cus. dt. 22/05/2009, which is reproduced below:-

Anti-dumping duty on Float glass, originating in, or exported from China and Indonesia — Reflective glass excluded — Amendment to Notification No. 4/2009-Cus.

Whereas, in the matter of import of Float Glass of thickness 2 mm to 12 mm (both thickness inclusive) of clear as well as tinted variety (other than green glass) but not including processed glass meant for decorative, industrial or automotive purposes, falling under heading 7005 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in or exported from the Peoples’ Republic of China and Indonesia (hereinafter referred to as the subject countries), and imported into India, the designated authority vide its final findings No. 14/19/2002-DGAD, dated the 22nd August, 2003, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 22nd August, 2003, had recommended to impose final anti-dumping duty on all imports of Float Glass of thickness 2 mm to 12 mm (both thickness inclusive) of clear as well as tinted variety (other than green glass) but not including reflective glass, processed glass meant for decorative, industrial or automotive purposes (hereinafter referred to as the subject goods) originating in or exported from the subject countries so as to remove the injury to the domestic industry;

And whereas, on the basis of the aforesaid findings of the designated authority, the Central Government, in exercise of the powers conferred by sub-section (1) of section 9A of the said Customs Tariff Act read with rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, imposed an anti­dumping duty on the subject goods vide notification of the Government of India, Ministry of Finance (Department of Revenue), No. 165/2003-Customs, dated the 12th November, 2003, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. No. 887(E), dated 12th November, 2003;

And whereas, the designated authority, vide its Notification No. 15/1/2007-DGAD, dated the 13th December, 2007, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 13th December, 2007 had initiated a sunset review in the matter of continuation of anti-dumping on imports of Float Glass of thickness 2 mm to 12 mm (both inclusive) of clear as well as tinted variety (other than green glass) but not including processed glass meant for decorative, industrial or automotive purposes, falling under heading 7005 of the First Schedule to the said Customs Tariff Act, originating in or exported from the subject countries and imported into India;

And whereas, the designated authority vide its final findings No. 15/1/2007-DGAD, dated the 2nd December, 2008, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 2nd December, 2008 had recommended continued imposition of the anti-dumping duty;

And whereas, in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of said Customs Tariff Act read with rules 18 and 23 of the said Customs Tariff Rules, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 165/2003-Customs, dated the 12th November, 2003, except as respects things done or omitted to be done before such supersession, the Central Government, after considering the aforesaid findings of the designated authority, has imposed an anti-dumping duty on the imports into India of Float Glass of thickness 2 mm to 12 mm (both inclusive) of clear as well as tinted variety (other than green glass) but not including processed glass meant for decorative, industrial or automotive purposes, falling under Heading 7005 of the First Schedule to the said Customs Tariff Act, vide notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 4/2009-Customs, dated the 6th January, 2009, which was published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. No. 14(E) of the same date;

And whereas, in terms of rule 4 read with rule 23 of said Customs Tariff Rules, the designated authority is required to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article, to identify the article liable for anti-dumping duty, to recommend the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry and to review the need for continuance of anti-dumping duty on such article;

Now, therefore, in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of said Customs Tariff Act read with rules 4, 18 and 23 of the said Customs Tariff Rules, the Central Government hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 4/2009-Customs, dated the 6th January, 2009, namely :-

In the said notification, in the opening paragraph, after the words, “as well as tinted variety (other than green glass) but not including”, the words “reflective glass,”, shall be inserted.

[Notification No. 51/2009-Cus., dated 22-5-2009]

7.3. During the intervening period i.e. 06.01.2009 to 22.05.2009, green reflective glass was not mentioned under the exclusion category of the Notification No. 4/2009-Cus dt. 06/01/2009 but mentioned in the amending Notification No. 51/2009-Cus. dt. 22/05/2009. The contention of the appellant that it was a mistake on the part of the Government by not specifically mentioning exclusion of green reflective glass from the scope of the said notification.

8. We find that recently, Bangalore Bench of this Tribunal interpreting the said notifications in the light of the principle of law laid down by the Hon’ble Supreme Court in the case of Dilip Kumar and Company (supra) and in the case of State of Gujarat Vs. Arcelor Mittal Nippon Steel India Ltd. [2022(379) ELT 418 (SC)], in the case of Glass House Vs. CC(Appeals) [Final Order No.21259/2023 dt. 20/11/2023], observed as follows:-

10. In view of above observations of the Supreme Court, the question of interpreting the exemption Notification has to be done in the manner specified in the Notification. In the present case, since Reflective Glass is not found in the Notification No.4/2009-Cus. dated 06.01.2009 for exempting them from anti-dumping duty, question of extending the benefit does not arise. The Commissioner (Appeals) has rightly held that no attempt can be made to infer the motive or meaning of the Notification other than what is emanating from the plain language of the Notification. Therefore, we uphold the order of the Commissioner (Appeals) and dismiss the Appeal.

9. In the result, following the aforesaid precedent, we uphold the impugned orders and reject the appeals filed by the appellants.

(Order pronounced in Open Court on 15.04.2024)