IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7563 of 2009(M)
1. K.KOCHUMON, AGED 41, S/O. SHAMSUDEEN, R
... Petitioner
Vs
1. UNION OF INDIA , REP. BY THE SECRETARY,
... Respondent
2. THE DIRECTORATE GENERAL ANTI-DUMPING
3. THE COMMISSIONER OF CUSTOMS CUSTOM
4. THE ASSISTANT COMMISSIONER OF CUSTOMS
For Petitioner :SRI.P.N.RAMAKRISHNAN NAIR
For Respondent :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :20/03/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.7563 of 2009
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Dated, this the 20th day of March, 2009
J U D G M E N T
The petitioner is an importer of a commodity called ‘reflective
glass’. Exts.P1 & P2 are the bills of entries filed by them at the time
of import. Ext.P3 is the notification issued by the 1st respondent
levying anti dumping duty on import of Float Glass originating in, or
exported from, China and Indonesia. On the strength of Ext.P3,
anti-dumping duty was imposed and the petitioner could clear the
goods only on furnishing Exts.P4 & P5 Bank Guarantee for the duty
that is payable.
2. In this writ petition, the petitioner disputes his liability to
pay anti dumping duty, as, according to him, reflective glass is
excluded from the description of Float Glass, in respect of which
anti-dumping duty has been imposed by Ext.P3. He is also making
reference to Exts.P6 & P7 notifications. Ext.P6 is the notification
dated 22/08/2003 containing the final findings in respect of the
proposal for levying anti-dumping duty. A reading of paragraph 8
shows that the preliminary findings as regards the product under
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consideration, excluded reflective glass from the scope of the
investigation and imposition of anti-dumping duty. This position is
also seen reiterated in the conclusions and also in the schedule, to
the notification itself. Ext.P7 is yet another notification issued by
the Customs Department vide notification No.165/2003 dated
12/11/2003. This also carries the description of the goods
excluding reflective glass.
3. However, when it comes to Ext.P8, which is issued after a
sunset review that was undertaken by the Department, the product
under consideration has been described in the following manner:-
“3. Product under Consideration.
The product under consideration in this sunset review is 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.
Since, the present investigation is a review investigation; product
under consideration remains the same as has been defined in the
original investigation, as there has been no significant
development or change in the product during the period
thereafter.”
4. Similarly, when it comes to Ext.P10, the notification
containing the final findings of the product under consideration and
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like article, paragraphs 6 & 8, reads as under :-
“Views of the Domestic Industry
6. The product involved in the original investigation and this
sunset review is Float Glass of thickness 2mm to 12mm (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. Since, the present
investigation is a review investigation; product under consideration
remains the same as has been defined in the original investigation,
as there has been no significant development or change in the
product during the period thereafter. It is classified under Chapter
heading 70.05 of the first schedule of Customs Tariff Act, 1975.
—–
—–
Examination by Authority
8. Authority examined the contentions of the domestic industry
in detail. It is noted that the present investigation is a sunset
review investigation and therefore the scope of the product under
consideration should not be altered in review investigation. The
Authority therefore holds that the scope of the present product
under consideration is the same as was the scope of the product
under consideration in the sunset review investigations notified
vide Notification No.14/19/2002-DGAD dated 22/08/2003 and
consequent Customs Notification No.165/2003-Customs, dated
12/11/2003.”
It was thereafter that Ext.P3, the final notification of the anti-
dumping duty on import of float glass, has been issued. Ext.P3
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notification does not carry the description of the goods as contained
in any of the previous notification, but only refers to heading
No.70.05 of the 1st schedule of Customs Tariff Act, 1975.
5. Thus perusal of Ext.P6 and P7 show that in the
description of Float Glass, the item reflective glass has been
excluded. But, however, such exclusion is not seen contained in
Exts.P8 and P10. Therefore, when the goods in respect of anti
dumping duty is imposed in Ext.P3, the description of the goods as
contained in Exts.P8 & P10 was what is relevant and this did not
exclude reflective glass.
6. Therefore, prima facie, I am not satisfied that the
reflective glass are excluded from the description of Float Glass in
respect of which anti dumping duty has been levied. In view of this,
I am not persuaded to accept the contention of the learned counsel
for the petitioner that the levy of anti dumping duty is without
jurisdiction.
7. True, the learned counsel for the petitioner made
reference to Exts.P11 & P12. According to him these documents
would show that reflective glass, were allowed to be imported in
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certain other ports in the country without levying anti dumping
duty. This Court can be guided only by the description of the
commodity as available in the notification and even if there has
been any omission on the part of the Department in levying duty at
any place that will not justify interference levy of duty, if it is
otherwise legal. Therefore, this court will not be justified in
granting any relief in the writ petition and it is accordingly
dismissed. However, it is clarified that the findings in the judgment
will not stand in the way of the petitioner agitating his liability
before the appellate Forum that is available under the statute,
which, shall decide the matter untrammelled by any of the
observations made above.
The writ petition fails and is, accordingly, dismissed.
(ANTONY DOMINIC, JUDGE)
jg