Custom, Excise & Service Tax Tribunal
J.P. Overseas Ltd vs Cc, Icd, New Delhi on 30 December, 2015
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI,
Appeal No.C/75/2009
[Arising out of OIA No.CC(A)/Cus/ICD/12/2009 dated 14.1.2009 passed by CC(Appeals), New Delhi]
J.P. Overseas Ltd. Appellants
Vs.
CC, ICD, New Delhi Respondent
Present for the Appellant: Shri Piyush Kumar, Advocate
Present for the Respondent:Shri Rakesh Puri, DR
Date of hearing/Decision:07.05.2014
Coram: Honble Mr. D.N. Panda, Judicial Member
Honble Mr. Manmohan Singh, Technical Member
Interim ORDER NO.941 /2014
FINAL ORDER NO.53860/2015 dated 30.12.2015
Per D.N. Panda:
Appellant imported PVC resin DG-1000K from China manufactured by M/s. Tianjin Dagu Chemicals Co. Ltd. It agrees that the goods so imported were liable to anti dumping duty but claims that the goods being originated in China and manufacturer was from China as well as export was made therefrom, such goods shall fall under Sl.No.19 of Notification No.11/2008-Cus dated 23.1.2009 of the Ministry of Finance for levying definitive anti-dumping duty.
2. But Revenue was of belief that the goods imported shall be liable to anti-dumping duty under Sl.No.23 of the above said Notification since that entry covers export by any manufacturer and any exporter or a combination thereof. Such doubt arose in the mind of department for the reason that export was made from China by M/s. Tianjin Dagu Chemicals Co. Ltd. and the anti-dumping duty notification issued on 23.1.2009 was amended on 24.3.2008 bringing name of that manufacturer to appear in column No.8 of the original Notification dated 23.1.2008 prescribing the levy of anti-dumping duty as exporter of the subject goods. Revenue says that when name of the manufacturer was not appearing in Column No.8 of the notification dated 23.1.2008, the export shall fall under Sl.No.23 of the said Notification being any exporter as envisaged by the entry.
3. For convenience of reading both Sl.Nos.19 and 23 of the Notification dated 23.1.2008 are extracted below:-
S.No.
Sub Heading
Description of the goods
Specification
COD
COE
Producer
Exporter
Duty amount
Unit of measurement
Currency
19
390421
Photopolymer of chloride Monomer (PVC) Suspension Grade)
As per Annexure
Republic of china
Any
Tianjin Dagu Chemical Co. Ltd.
Tianjin Bohai Chemical Industries Import and Export Corporation
1040
MT
Rupees
23
390421
do
do
Republic of china
any
Any other combination of Producer-exporter
2702
MT
Rupees
4. Ld. Counsel Shri Piyush Kumar appearing for appellant submits that anti-dumping duty is leviable on the goods exported from China being manufactured in that country. Original Notification dated 23.1.2008 imposed duty on the goods exported by Tianjin Bohai Chemical Industries Import and Export Corporation of China appearing in column (8) of Sl.No.19 of that Notification. On 24.3.2008 name of the manufacturer i.e. M/s. Tianjin Dagu Chemicals Co. Ltd. was added in column (8) of Sl.No.19 of the Notification dated 23.1.2008 by an amending notification dated 24.3.2008. Accordingly export by the producer viz. M/s. Tianjin Dagu Chemicals Co. Ltd. in such cases was also leviable to anti-dumping duty in terms of Sl.No.19 of the Notification No.11/2008-Cus dated 23.1.2008.
5. Per contra, Revenue submits that in view of addition of name of manufacturer in Column 8 of sl.No.19 of the Notification dated 24.3.2008, the exports by manufacturer, M/s. Tianjin Dagu Chemicals Co. Ltd. shall be treated as export falling under S.No.19 of Notification dated 23.1.2008 but not prior to that.
6. Rival submission of both gives rise to duty difference between both serial numbers as prescribed by column No.9 of the Notification dated 23.1.2008. But the fact remains the same is that as per bill of entry, export of subject goods was made from China by the producer itself and the goods were manufactured in China. Amending Notification No.38/Cus-2008 dated 24.3.2008 brought out name of the manufacturer, M/s. Tianjin Dagu Chemicals Co. Ltd. to column No.8 of the original Notification dated 23.1.2008 implying that if the producer also exports subject goods, that shall be liable to anti-dumping duty under Serial No.19. This is a curative measure prescribed by the notification to be construed as effective from 23.1.2008 so as to ensure no escapement of duty if producer also exports subject goods manufactured in China. Rationale behind the amendment was to overcome the shortcomings in the earlier notification whereby subject goods exported by producer-exporter escaping anti-dumping duty were brought to levy from the date the definitive anti-dumping duty was imposed. Amendment extended scope of levy brining the export made by both producer and exporter to the ambit of levy. Therefore, the amending notification is to be read in the manner that advances the object of extending scope of levy to gather Revenue without escapement of a manufacturer from levy under Sl.No.19 of the Notification. The amendment was thus made to protect interest of Revenue prescribing trade remedy measure as a curative one.
7. Revenues claim that import of the appellant shall fall under No.23 of notification does not appeal to common sense. Amending notification had its intention making clear that apart from the exporter specified in column 8 of Sl.No.19, if the producer named under that serial number also exports subject goods, such goods shall be liable to anti-dumping duty. It is well settled law that generality excludes specific. Therefore, appellants imports fall under the purview of Sl.No.19 of the Notification dated 23.1.2008 since country of origin, producer and exporter belong to China and levy of anti-dumping duty was goods specific and country specific. This being most specific case than the generalization prescribed by sl.no.23 of the Notification, case of the appellant is not possible to be excluded from sl.no.19 from levy of anti-dumping duty on imports. Accordingly amount of anti-dumping duty prescribed in column No.9 of the Notification against Sl.No.19 thereof shall apply to the import of subject goods made by appellant. Such observation and reasoning calls for allowing the appeal. It is ordered accordingly.
(Dictated & pronounced in the open court)
(MANMOHAN SINGH ) (D.N.PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
mk
Appeal No.C/75/2009
J.P. Overseas Vs. CC, ICD, TKD, New Delhi
8. I have gone through the draft order prepared by the Ld. Member (Judicial) holding that the import of PVC resin by J.P. Overseas would be subjected to anti-dumping duty under entry at Sr.No.19 of Notification No.11/2008-Cus dated 23.01.2008 inasmuch as the subsequent amendment by Notification No.38/2008-Cus dated 24.03.2008 was curative in nature. Since I differ with the view taken by the Ld. Member (Judicial), I am recording my separate findings hereunder.
9. The facts of the case are that the Appellants had imported PVC resin DG-100K from a Chinabased manufacturer Tianjin Dagu Chemical Co. Limited under Bill of Entry dated 24.01.2008. The PVC resin so imported by the Appellants was subject to anti-dumping duty in terms of Notification No.11/2008-Cus dated 23.01.2008. The dispute between the Appellants and the Revenue arose on account of entries at Sr. No.19 and 23 of the said Notification, which are reproduced in Para 3 above. In essence, entry at Sr. No.19 prescribed anti-dumping duty on the goods manufactured by Tianjin Dagu Chemical Co. Ltd. and exported by Tianjin Bohai Chemical Industries Import and Export Corporation whereas the entry at Sr. No.23 covered any other combination of producer-exporter. The goods covered under Sr. No.19 attracted lower anti-dumping duty as compared to those under Sr.No.23. In these circumstances, the Appellants claimed that their product did not attract any anti-dumping duty, as they were not covered under either of these entries. Though they abandoned this stand later on. The Revenue on the other hand sought to levy duty prescribed under Sr. No.23 on the ground that the Appellants would be covered under Any other combination of producer-exporter.
10. Subsequently, on 24.03.2008 Notification No.38/2008-Cus was issued to amend the entry at Sr.No.19 to include the name of Tianjin Dagu Chemical Co. Limited (the manufacturer) in the category exporters in addition to the existing exporter Tianjin Bohai Chemical Industries Import and Export Corporation. It is this amendment in the Notification that was prompted the appellants to claim that the amendment had a retrospective effect, a view upheld by the Ld. Member (Judicial). The Member (Judicial) has expressed the view that the rationale behind the amendment was to overcome the shortcomings in the earlier Notification whereby subject goods exported by producer-exporter escaping anti-dumping duty were brought to levy from the date the definitive anti-dumping duty was imposed. Member (Judicial) has further opined that the amending Notification had made its intention making clear that apart from the exporter specified in column 8 of Sr.No.19 if the producer named under Notification also exports the goods, such goods shall be liable to anti-dumping duty.
11. I am unable to support the view expressed by the Ld. Member (Judicial) for the following reasons:-
11.1 The Notification dated 23.01.2008 contained two specific entries. The first at Sr. No.19 covered the goods manufactured by Tianjin Dagu Chemical Co. Limited and exported by Tianjin Bohai Chemical Industries Import and Export Corporation and the second entry at Sr.No.23 covered the goods manufactured and exported by any other producer-exporter combination. In my opinion, given the complexion of the Notification the scope of the entry at Sr. No.23 was wide enough to cover all other combinations, including the ones where the manufacturers themselves exported the goods. Assuming for a moment that there was no amendment to the existing Notification. In that scenario could it be inferred that the goods manufactured and exported by Tianjin Dagu Chemical Co. would not have attracted any anti-dumping duty? My view is that in such a scenario, in the absence of inclusion of the name of Tianjin Dagu Chemical Co. at Sr. No.19 at the time of import, the imports by the Appellants would be covered by entry at Sr. 23. This is more so when the amending Notification does not specifically provide for retrospective inclusion of the name of Tianjin Dagu Chemical Co. at Sr.No.19 from the date of imposition of anti-dumping duty. It is pertinent to mention here that the Appellants had before the lower authorities, and also in the Appeal memo contended that their imports were not covered by entry under Sr. No.19, I am, in the absence of any indication that the name of Tianjin Dagu Chemical Co. was included at Column 8 of entry at Sr. No.19 effective from 23.01.2008, of the opinion that the import made by the Appellant was covered by Sr. No.23 till the amending notification was issued on 24.03.2008.
11.2 Further, I would like to mention that the amending Notification is not a corrigendum to the initial Notification and there is nothing in it to show that amendment to entry at Sr.No.19 was to given retrospective effect. Accordingly, I am of the view that the consignment of goods, which is subject matter of the present dispute, would be liable to anti-dumping duty in terms of entry at Sr. No.23.
11.3 That a notification has been issued as a curative measure has to emerge from the amending Notification itself. There is no scope for any intendments merely for the reason that it amended an existing entry. Such an interpretation is bound to upset the assessments made in accordance with the then existing provision of law or Notification. It is pertinent to mention here that the Appellants have been contending that no being covered by the anti-dumping duty Notification in question as (Sr. No.19 did not mention the name of Tianjin Dagu Chemical Co. and Sr. No.23 did not cover the exports made by manufacturer-exporter) they were not liable to pay any anti-dumping duty. Later on they abandoned this argument and claimed that the consignment was covered under entry at Sr. No.19 amended by Notification No.38/2008-Cus dated 24.3.2008. In the absence of any declaration in the Notification to the effect that inclusion of the name of Tianjin Dagu Chemical Co. was from the date of the original Notification, this contention is not acceptable.
11.4 Notifications issued under the powers conferred by any legislation are subordinate legislation and the authority vested with powers to issue the same has the authority to make it operational retrospectively. But such an intention should emerge from the expressions used in the Notification itself. In the present case, there is nothing in the Notification to indicate that the changes would take effect from the date when definitive anti-dumping duty was initially imposed on the product imported by the Appellants. For want of such an express intention in the Notification, it is difficult for me to accept the proposition that the amendment to the entry at Sr. No.19 was retrospective.
12. In this regard, reference is invited to Honble Gujarat High Court judgement in case of CC (Preventive) Vs. Goyal Traders-2014(302) ELT 529 (Guj.) wherein Honble High Court held that in the absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such statutory provision, same cannot be given retrospective effect.
13. Para 14 to 16 of the judgement are quoted for ready reference:-
14. ?It is, by now, well settled that the statutory amendments, either creating fresh liability hitherto no existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect.
15.?In other words, it is a well established principle of construction that a statute inconsistent with substantive rights is prima facie considered prospective unless it is expressly or by necessary implication may have been given retrospective operation (refer to the decision of Apex Court in case of Keshavan Medhava Menon v. State of Bombay - AIR 1951 SC 128).
16.?Particularly, in fiscal legislation imposing liabilities generally governed by the normal rule is that it is not retrospective in nature. It is, however, equally undisputed that a procedural provision when made applicable to pending proceedings would not be viewed as given retrospective operation to the liability. In case of Govinddas and Ors. v. The Income Tax Officer and Anr. - AIR 1977 Supreme Court 552, the Apex Court was considering provision of Section 171 of Income-tax Act, 1961, in which the Legislature under sub-section (6) provided that even when no claim of total or partial partition is made at the time of making assessment under Section 143 or 144 of the Act, if it is found after the completion of assessment that the family has already effected as partition, total or partial, all the members shall be jointly and severally liable for the tax as payable by the joint family and the tax liable shall be apportioned among the members according to the portion of the joint family property allotted to each of them. The Apex Court was of the opinion that sub-section (6) of Section 171 thus, for the first time, imposed in the case of this kind joint and several liability on the members for the tax assessed on Hindu Undivided family and thus was personal liability as distinguished from the liability limited to the joint family property received on partition. The Apex Court thereupon held and observed that :
We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating of imposing a new obligation or liability, construe sub-section (6) of Section 171 as embracing a case where assessment of a Hindu undivided family is made under the provisions of the old Act. Here in the present case, the assessments of the Hindu Undivided Family for the assessment years 1950-51 to 1956-57 were completed in accordance with the provisions of the old Act which included Section 25A and the Income Tax officer was, therefore, not entitled to avail of the provision enacted in sub-section (6) read with sub-section (7) of Section 171 of the new Act for the purpose of recovering the tax or any part thereof personally from any members of the joint family including the petitioners.
14. In view of above, I do not agree with the findings of learned Member (Judicial) and hold that classification of imported product will be rightly under Sr. No.23 under Notification dated 23.1.2008. However, after amendment of notification in column 8 of Sr. No.9 of notification dated 24.3.2008, classification will be under Sr. No.19 of notification dt.24.3.2008.
( MANMOHAN SINGH)
TECHNICAL MEMBER
mk
Difference of Opinion
Whether as per opinion of learned Member (Judicial), amending notification no.38/2008-Cus dated 24.3.2008 making amendment in Sl.No.19 of the Notification No.11/2008-Cus dated 23.01.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty.
Or
Whether as per opinion of Member (Technical), amending notification no.38/2008-Cus dated 24.3.2008 making amendment in Sl No.19 of the Notification No.11/2008-Cus will be prospective in nature.
(Manmohan Singh ( D.N. Panda)
Member (Technical) Member (Judicial)
15. Vide CESTAT Interim Order No. 941/2014, the following difference of opinion was expressed:
Whether as per opinion of learned Member (Judicial), amending Notification No. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/2008-Cus dated 23.1.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty.
OR
Whether as per opinion of Member (Technical), amending Notification No. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/2008-Cus. will be prospective in nature.
The said difference of opinion has been referred to me.
16. Ld. Advocate for the appellant has contended that :
(i) vide notification dated 14.2.2008, Directorate General of Anti-dumping & Allied Duties issued corrigendum to final findings notified vide notification dated 26.12.2007 in respect of the anti-dumping investigation concerning import of PVC Suspension Grade, originating in or exported from Indonesia, Malaysia, Korea RP, Japan, USA, Thailand, China PR and Chinese Taipel. The said notification dated 14.2.2008, inter alia, stated that Sl. No. 19 of the final findings notified vide Notification dated 26th December 2007 shall be corrected as under :
S.No.
Sub-Heading or Tariff Item
Description of goods
Specification
Country of origin
Country of Export
Producer
Exporter
Duty Amount
Unit of Measure
Currency
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11
19
3904.21
Homopolymer of vinyl chloride monomer (PVC) (suspension grade)
See Footnote
ChinaPR
Any
M/s Tianjin Dagu Chemical Company Ltd.
M/s Tianjin Dagu Chemical Company Ltd.
Or
M/s Tianjin Bohai Chemical Industries Imp. & Exp. Corporation
1047
MT
Rs.
(ii) In pursuance of the said corrigendum Notification dated 4.2.2008 issued by DGAD, Customs Notification No. 38/2008-Cus. dated 24th March 2008 was issued amending Notification No. 11/2008-Cus. dated 23rd Jan. 2008 and therefore amendment made by Notification No. 38/2008-Cus. should apply retrospectively with effect from 23rd Jan. 2008 when Notification No. 11/2008-Cus. was issued.
(iii) The corrigendum issued by DGAD would relate back to the original notification itself and cited the judgements in the cases of Jubilant Organosys Ltd. Vs. Asstt. Commr. of C. Ex., Mysore-III 2012 (276) ELT 335 (Kar.) and Polyplex Corp. Ltd. Vs. Union of India 2014 (306) ELT 377 (All.).
(iv) Ld. Advocate agreed that anti-dumping duty is levied in terms of relevant Customs notifications.
17. The ld. DR, on the other hand, pleaded that anti-dumping duty is charged as per the custom notification levying the same and there is nothing in custom Notification No. 38/2008-Cus which gives any reason to apply the same retrospectively and referred to the judgement of Gujarat High Court in the case of CC (Preventive) Vs. Goyal Traders 2014 (302) ELT 529 (Guj.).
18. I have considered the contentions of both sides. At the very outset, it is pertinent to mention that anti-dumping duty is charged in terms of the customs notification issued in that regard and not in terms of the final findings of Directorate General of Anti-Dumping and Allied Duties (DGAD). Indeed the final findings of DGAD does not levy any anti-dumping duty. It is for the Government to impose anti-dumping duty in the wake of and taking into account the final findings of the DGAD and when the Central Govt. decides to impose anti-dumping duty, formal custom notification levying such duty is issued and only with the issuance of such Customs notification imposing anti-dumping duty, anti-dumping duty is levied. This is well settled and is not disputed by the appellant or Revenue and therefore need not be dwelt upon any further.
19. As is evident from the difference of opinion (quoted above) the only issue to be decided by me is whether Notification No. 38/2008-Cus. dated 24.3.2008 inter alia amending Sl No. 19 of Notification No. 11/2008-Cus. dated 23.1.2008 has retrospective effect or prospective effect. For this purpose, it is useful to quote the said notifications.
Notification No.11/2008-Cus dated 23.01.2008
whereas in the matter of import of Homopolymer of Vinyl chloride monomer (PVC) suspension grade (hereinafter referred to as the subject goods) falling under the sub-heading 3904 21 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the said Customs Tariff Act), originating in, or exported from, Taiwan, Peoples Republic of China, Indonesia, Japan, Korea RP, Malaysia, Thailand and USA (hereinafter referred to as the subject countries), the designated authority in its final findings vide Notificationno.14/08/2005-DGAD, dated the 26th December, 2007, published in the Gazette of India, Extraordinary, Part I, Section I, dated the 26th December, 2007 has come to the conclusion that
(a) The subject goods have entered the Indian market from the subject countries at prices less than their normal values in the domestic markets of the exporting countries;
(b) the domestic industry has suffered material injury and threat of injury exists; and
(c) the injury has been caused to the domestic industry, both by volume and price effect of dumped imports of the subject goods originating in, or exported from, the subject countries;
and has recommended the imposition of definitive anti-dumping duty on imports of the subject goods originating in, or exported from, the subject countries;
Now, therefore, in exercise of the powers conferred by sub-section (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975), 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, the Central Government, on the basis of the aforesaid findings of the designated authority, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under sub-heading of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), the specification of which is specified in column (4) of the said Table, originating in the countries specified in the corresponding entry in column (5), and exported from the countries specified in the corresponding entry in column (6) and produced by the producers specified in the corresponding entry in column (7) and exported by the exporters specified in the corresponding entry in column (8) and imported into India, an anti-dumping duty at the rate equal to the amount indicated in the corresponding entry in column (9), in the currency as specified in the corresponding entry in column (11) and per unit of measurement as specified in the correspondent entry in column (10) of the said Table.
Table
S.No.
Sub-Heading or Tariff Item
Description of goods
Specification
Country of origin
Country of Export
Producer
Exporter
Duty Amount
Unit of Measure
Currency
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11
1.
19
..
3904.21 ..
Homopolymer of vinyl chloride monomer (PVC) (suspension grade) ..
Homopolymer of vinyl chloride monomer (suspension grade), where various polymer chains are not linked to each other, excluding the specially PVC suspnesion resins such as cross-linked PVC, Chlorinated PVC (CVPC), vinyl chloride-vinyl acetate copolymer (VC-VAC) PVC paste resin and PVC blending resin ..
Peoples Republic of China ..
Any ..
Tianjin Dagu Chemical Company Ltd.
....
Tianjin Bohai Chemical Industries Imp & Exp Corporation ..
1047..
MT ..
Rs.
Notification No. 38/2008-Cus. dated 24.3.2008 [In exercise of the powers conferred by sub-section (1) and sub-section (5) of Section 9A of the Customs Tariff Act, 1975 (51 of 1975) read with rules 18 and 20 of the Customs Tariff (Identificatiion, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury)Rules, 1995, the Central Government, hereby makes the following amendments in the notification of Government of India in the Ministry of Finance (Department of Revenue ) No. 11/2008-Customs dated the 23rd January, 2008, number G.s.R.52(E), dated the 23rd January, 2008 namely:- In the said notification, in the TABLE ..................... ...................
(iii) against Sl. No. 19.
(a) For the entry in column (7), the entry M/s Tianjin Dagu Chemical Company Limited shall be substituted.
(b) For the entry in column (8), the entry M/s Tianjin Dagu Chemical Company Limited or M/s Tianjin Bohai Chemical Industries Imp. & Exp. Corporation shall be substituted. It is evident that notification No. 38/2008-Cus. Dated 24.3.2008 quoted above amended Notification No. 11/2008- Cus dated 23.01.200. Notification no.24.03.2008 does not have even a hint or shade of retrospective applicability. The contention of the ld. Advocate that Notification No. 38/2008-Cus. was issued in pursuance of the corrigendum dated 14th February 2008 issued by DGAD has been considered. The Customs notification no.38/2008-Cus dated 24.03.2008 makes no reference to DGAD notification no.14.02.2008; indeed it does not give any such indication that it is issued in pursuance of the said corrigendum dated 14th Feb. 2008 and even if it was so, the applicability of the Customs notification will have to be interpreted from the wording used therein. As stated earlier Notification No. 38/2008-Cus. is a simple amending notification by virtue of which amendment was made to Notification No. 11/2008-Cus. It is well settled that a notification always has prospective effect unless a contrary intention is evident from the language thereof. The language of Notification No. 38/2008-Cus. does not contain even a hint or an indication that it was intended to have retrospective effect. Supreme Court in the case of Jaswal Neco Ltd. Vs. CC, Vaizaa 2015-TIOL-173-SC-Cus while, inter alia, dealing with a notification relating to ADD held it to be applicable prospectively. In the case of Jay Mahakali Rolling Mills Vs. U.O.I, Supreme Court held that amendment to notification is prospective and if the intention was to give retrospective effect, it would have been stated to be so specifically. Gujarat High Court in the case of Goyal Traders (supra) held that in the absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such statutory provision the same cannot be given retrospective effect. The judgements of Karnataka High Court in the case of Jubilant Organosys Ltd. (supra) and Allahabad High Court in the case of Polyplex Corp. Ltd. (supra) cited by the appellant deal with the effect of corrigendum to notification and therefore have no relevance to the present case because, as stated earlier, Notification No. 38/2008-Cust dated 24.3.2008 is an amending notification which amended Notification No. 11/2008-Cus; it (i.e. Notification No. 38/2008-Cus.) and is not a corrigendum to Notification No. 11/2008-Cus. dated 23.01.2008 either by express mention to that effect or even by implication.
20. In the light of the foregoing discussion, I answer the reference in favour of the opinion of Member (Technical) that amending Notification No. 38/2008-Cus dated 24.3.2008 has only prospective application and does not have retrospective applicability.
21. The papers may be returned to the concerned bench.
[Pronounced in the open court] (R.K. Singh) Member (Technical) RM Appeal No.C/75/2009 In the matter of :-
M/s. J.P. Overseas Ltd.
Vs. CC, New Delhi Final Order No.53860/2015 Dated:30.12.2015 MAJORITY ORDER In view of the majority order, the appeal filed by the appellant is rejected.
(Pronounced on 30.12.2015 )
( B. Ravichandran ) ( Justice G. Raghuram)
Member (Technical) President
1