spacer.gifsto247.gifspacer.gif Date of filing of ST-3 returns extended - returns for April to June, 2012 to be filed by 25th November, 2012 only.spacer.gifsto247.gifspacer.gif BREAKING NEWS : Service Tax half yearly ST-3 return to cover period from April, 2012 to June, 2012 only (ST Notification 47/2012)spacer.gifsto247.gifspacer.gif All Service Tax assessees are informed that they will not be able to file ST 3 returns in ACES now and have to wait until the modified version of ST 3 Form which is made available in a few weeks on aces.spacer.gifsto247.gifspacer.gif Penalty: Section 76: No delay in depositing service tax with Revenue: Penalty not imposable.spacer.gifsto247.gifspacer.gif Refund: Export of Services: Terminal Handling Charges also a port service.spacer.gifsto247.gifspacer.gif Penalty: Once the entire demand is set aside by Commissioner (A) and that order is not challenged by the department: Commissioner cannot impose penalty under Section 76 by passing a Review Order: Penalty set aside.spacer.gifsto247.gifspacer.gif Cargo Handling Service: The activity of transportation and stacking within the stockyard premises not covered: Demand set aside.spacer.gifsto247.gifspacer.gif Finance Act, 2012spacer.gifsto247.gifspacer.gifDefinitions introduced in Section 65C, Section 66B (Charge of Service Tax), Section 66C (Determination of Place of Provision of Service), Section 66D (Negative List), Section 66E (Declared Services), Section 66F (Bundled Services), Amendment to Section 67 (omitting of Explanation, Amendment to Section 68 (sharing of taxes between provider and receiver) would operate from 01.07.2012.spacer.gifsto247.gifspacer.gifThe notifications amending Cenvat Credit Rules, Valuation Rules, Service Tax Rules, Works Contract Composition Scheme have not been issued.spacer.gifsto247.gifspacer.gifSection 65, 65A, 66 & 66A would cease to operate from 01.06.2012spacer.gifsto247.gifspacer.gifThe clause (A), (B), (D) & (E) of Section 143 of the Finance Act,2012 will come into force from 01.06.2012 as per Notification No.18/2012 dated 01.06.2012spacer.gifsto247.gifspacer.gifNegative list based service tax will come into force from 1st july 2012spacer.gifsto247.gifspacer.gifFinance Bill, 2012; gets enacted on May 28, 2012 : Finance Act (No 23 of 2012)spacer.gifsto247.gifspacer.gif Aam aadmi becomes khaas aadmi spacer.gifsto247.gifspacer.gifCentral Excise and Service Tax returns combined into a one page form "EST-1"spacer.gifsto247.gifspacer.gifCentral Excise rates increased from 10 % to 12%spacer.gifsto247.gifspacer.gifService Tax Rate to be 12%  spacer.gifsto247.gifspacer.gif Date of filing of ST-3 returns extended - returns for April to June, 2012 to be filed by 25th November, 2012 only.spacer.gifsto247.gifspacer.gif BREAKING NEWS : Service Tax half yearly ST-3 return to cover period from April, 2012 to June, 2012 only (ST Notification 47/2012)spacer.gifsto247.gifspacer.gif All Service Tax assessees are informed that they will not be able to file ST 3 returns in ACES now and have to wait until the modified version of ST 3 Form which is made available in a few weeks on aces.spacer.gifsto247.gifspacer.gif Penalty: Section 76: No delay in depositing service tax with Revenue: Penalty not imposable.spacer.gifsto247.gifspacer.gif Refund: Export of Services: Terminal Handling Charges also a port service.spacer.gifsto247.gifspacer.gif Penalty: Once the entire demand is set aside by Commissioner (A) and that order is not challenged by the department: Commissioner cannot impose penalty under Section 76 by passing a Review Order: Penalty set aside.spacer.gifsto247.gifspacer.gif Cargo Handling Service: The activity of transportation and stacking within the stockyard premises not covered: Demand set aside.spacer.gifsto247.gifspacer.gif Finance Act, 2012spacer.gifsto247.gifspacer.gifDefinitions introduced in Section 65C, Section 66B (Charge of Service Tax), Section 66C (Determination of Place of Provision of Service), Section 66D (Negative List), Section 66E (Declared Services), Section 66F (Bundled Services), Amendment to Section 67 (omitting of Explanation, Amendment to Section 68 (sharing of taxes between provider and receiver) would operate from 01.07.2012.spacer.gifsto247.gifspacer.gifThe notifications amending Cenvat Credit Rules, Valuation Rules, Service Tax Rules, Works Contract Composition Scheme have not been issued.spacer.gifsto247.gifspacer.gifSection 65, 65A, 66 & 66A would cease to operate from 01.06.2012spacer.gifsto247.gifspacer.gifThe clause (A), (B), (D) & (E) of Section 143 of the Finance Act,2012 will come into force from 01.06.2012 as per Notification No.18/2012 dated 01.06.2012spacer.gifsto247.gifspacer.gifNegative list based service tax will come into force from 1st july 2012spacer.gifsto247.gifspacer.gifFinance Bill, 2012; gets enacted on May 28, 2012 : Finance Act (No 23 of 2012)spacer.gifsto247.gifspacer.gif Aam aadmi becomes khaas aadmi spacer.gifsto247.gifspacer.gifCentral Excise and Service Tax returns combined into a one page form "EST-1"spacer.gifsto247.gifspacer.gifCentral Excise rates increased from 10 % to 12%spacer.gifsto247.gifspacer.gifService Tax Rate to be 12%
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Retrospective Levy of Anti-Dumping Duty

The provisions of Section 9A (3) of the Customs Tariff Act, 1975 empowers the Central Government to levy anti dumping duty with retrospective effect. Such Anti dumping duty can be levied on a retrospective basis in case it is found that –

a. there is a history of dumping which caused injury or that the importer was, or should have been aware that the exporter practices dumping and that such dumping would cause injury; and

b. the injury caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti dumping duty liable to be levied.

However, as per Rule 20 of the Customs Tariff Act, 1975 the anti dumping duty cannot be levied retrospectively beyond 90 days from the date of issue of Notification imposing provisional duty. Further, no retrospective application prior to the date of initiation of investigation is possible.

In such cases the Central Government may, by notification in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under Section 9A (2) of the Customs Tariff Act, 1975 but not beyond ninety days from the date of notification under that sub-section. Such duty shall be payable at such rate and from such date as may be specified in the notification.

The Circular No. 9/2006-Cus dated 23.01.2006 issued by the Central Board of Excise and Customs on the issue retrospective levy of provisional anti-dumping duty and the duty payable for interregnum period when provisional duty expired, has clarified that

“The issue under doubt is whether anti-dumping duty (ADD) under Section 9A of the Customs Tariff Act, 1975 is payable during the interregnum period between the date of expiry of provisional anti-dumping duty and imposition of final ADD, and whether it should be applied retrospectively from the date of imposition of provisional levy.

Section 9A of the Customs Tariff Act, 1975 provides for levy of ADD. Sub-section (2) of this Section stipulates that pending determination in accordance with provisions of this Section and the rules made thereunder, the Central Government may impose an anti-dumping duty on the basis of provisional estimates. Rule 13 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as ADD rules) provides for levy of provisional anti-dumping duty for a period of six months and is extendable by the Central Government for a further period of three months. However, under Rule 17 the Designated Authority may submit the final findings regarding imposition of definitive anti-dumping duty on any product within 12 months from the date of initiation of investigation or extended period of another 6 months. Therefore, there may be a time gap during which no ADD is in operation because provisional anti-dumping duty notification may have lapsed and final ADD notification may not have been issued based on such final findings.

As per Rule 21(2) of the Anti-Dumping Duty Rules, if the final anti-dumping duty (imposed w.e.f. the date of provisional anti-dumping duty) is less than the provisional duty, the difference is to be refunded. If, on the other hand, the final ADD is more than the provisional duty, the difference is not to be collected from the importer.

An opinion has been expressed by some Commissionerates as well as by the Ministry of Commerce & Industry that going by the spirit of Rule 21(1) of the anti-dumping duty rules, ADD should not be recovered for the period when there was neither provisional nor final anti-dumping duty in operation and therefore at the material time, rate of anti-dumping duty on that product may be treated as ‘nil’. Hence, if later, final ADD is imposed on that product for the period under consideration, the difference should not be collected.

Board had referred the matter to the Ministry of Law & Justice on this issue. Law Ministry in its opinion had concluded that even if no provisional duty was collected during the intervening period after six months of the provisional duty, the goods shall attract the duty on imposition of final duty with a difference that the duty shall be collected on imposition of final duty.

The matter has since been decided by the principal bench of CESTAT in matter of Nitco Tiles Ltd. v. Designated Authority - 2006 (193) E.L.T. 17 (Tri. - Del.). The Hon’ble Court has held that “Rule 20(2)(a) is intra vires the provisions of the said Act and the anti-dumping duty has been validly imposed with effect from the date of imposition of the provisional anti-dumping duty and would continue to operate even during the ‘interregnum period’.”

Board has examined the issue in detail and it is felt that in the matters of interpretation of Law or Statute, opinion of the Law Ministry would prevail over any other technical opinion. Moreover, the opinion of the Law Ministry has been endorsed by the Tribunal. Therefore, it has been decided to follow the advice of the Ministry of Law in this matter.

It is accordingly clarified that in cases where finally determined anti- dumping duty is imposed with a retrospective effect from the date of imposition of provisional anti-dumping duty, then the final anti-dumping duty would be payable even for the interregnum period subsequent to the expiry of the provisional duty period.”

Extract of Law Ministry’s Opinion:

“In substance, the question is that if for any person the investigation leading to final determination takes more than six months after imposition of the provisional duty, would it disable the Central Govt. to impose duty even after final determination so as to frustrate the very object of the Act and create dis-harmony with other Rules, for example, Rule 17, which provides a period of one year for completion of investigation.

It is well settled that the Rules are to be so interpreted as to promote the object of the Act - ut res magis valeat quem pereat. Further a harmonious reading needs to be given to the various Rules. Furthermore, the Rule cannot limit the operation of the Act. The Act has not created any such limitation as suggested as it would have created a gap between the periods of imposition of anti-dumping duty.

Apart from the above, from a strictly grammatical angle the word “from” preceding “the date of imposition of provisional duty” is important when read against other possible expressions like “for the period of”. The word ‘from’ indicates only a starting point running through all the events thereafter, whereas the expressions “for the period”, “during the period” etc., convey two points of time, the start and the end, usually of the same event or a chain of events. Section 9(2) and the word “from” in Rule 20(2)(a) leave no doubt as to the Government’s capacity to impose final anti-dumping duty ‘from’ the date of imposition of the provisional duty without any break thereafter.

In the light of the above we are of the view that finally determined anti-dumping duty is payable from the date of imposition of provisional duty even after six months of the provisional duty.”

             
 
              
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