Customs, Excise and Gold Tribunal - Bangalore
Dyna Enterprises vs The Commissioner Of Customs on 9 April, 2007
Equivalent citations: 2007(118)ECC397, 2007ECR397(TRI.-BANGALORE)
ORDER T.K. Jayaraman, Member (T)
1. The appellant has filed this appeal and the application for stay in respect of the Order-in-Appeal No. 120/2006 dated 07.4.2006 passed by the Commissioner of Customs (Appeals), Cochin.
2. In the impugned order, the Commissioner (Appeals) has upheld the order of the Original Authority which confirms the demand of Rs. 29,38,75,442/- being the anti-dumping duty on the goods imported under Section 28(2) of the Customs Act. Interest under Section 28(AB) of the Customs Act, 1962 has also been demanded. In terms of the impugned order, the appellant is required to pre-deposit the above amount along with interest.
3. Shri Satish Sunder, learned Advocate appeared on behalf of the applicant and urged the Bench for granting waiver of pre-deposit of the amount demanded in the impugned order on the following grounds:
(i) The anti-dumping duty is in respect of the item classifiable under Customs Tariff Heading 8539.31. However when the goods were cleared they were classified under CTH 8589.29. Therefore anti-dumping duty is not applicable to the impugned goods.
(ii) The appellants imported 13 consignments during the period from 11.11.2002 to 29.11.2002. The consignment was assessed for duty at the rate of 30% + 16% + 4%. After payment of duty, the goods were cleared.
(iii) The Govt. of India issued Notification No. 138/2002 Cus dated 10.12.2002, regularizing the anti-dumping duty imposed under earlier Notification No. 128/2001-Cus dated 21.12.2001. The demand-cum-Show Cause Notice dated 10.2.2004 under Section 28(1) has been issued demanding anti-dumping duty to the tune of Rs. 60,52,232/-. The appellant gave reply to the show cause notice and after which the Corrigendum was issued enhancing and revising the duty to Rs. 29,38,75,442/-. The Original authority confirmed the above demand. The appellant approached the Commissioner (Appeals) who passed the impugned order.
(iv) The anti-dumping duty on CFL lamps imposed vide Notification No. 128/2001-Cus dated 21.12.2001 had a validity period of only six months and expired on 20.6.2002. No notification was issued under Rule 13 of the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on dumped articles and determination of Injury) Rule 1995. As a result, it is clear that for all imports which were made during November 2002 when there was no provision for levy of Anti-Dumping duty and therefore the levy does not have an authority of law.
(v) The department cannot seek to impose Anti Dumping Duty retrospectively and put higher burden on the assessee. The invocation of the provisions of Section 28(1) and (2) of the Customs Act, 1962 is not applicable for collection of Anti-Dumping Duty as the latter only relates to Customs Tariff Act.
(vi) In terms of Section 28(2A) (ii) of the Customs Tariff Act, the proceedings initiated should be completed within 6 months from the date of service of notice under sub Section (i) of Section 28 and that has not been done and therefore the impugned order stands vitiated. In this case, there is no collusion or suppression or willful mis-statement attributable to the appellant and the demand notice does not seek to invoke longer period of limitation of 5 years on the above score. Therefore the impugned order passed after expiry of six months period is not sustainable.
(vii) Demand of duty itself is time barred as the entire Customs duty had been paid during November 2002 and the goods were cleared during the same month.
(viii) The Corrigendum dated 10.9.2003 was issued much after six months from the date of payment of duty and therefore hit by limitation in terms of Section 28(1) of the Customs Act, 1962.
(ix) The Corrigendum can only change typographical and clerical error but cannot be used to change the facts, once set a new case and raise additional demand against the appellants particularly when the appellants made its reply to the Show Cause Notice.
(x) The issue is decided in favour OT the appellants in the following case laws:
(i) CCE Cochin v. Chetan Enterprises 2007 (78) RLT 525 (CEST-Bang.)
(ii) Rajyalakshmi Laboratries Ltd. and Anr. v. CC and CCE, Hyderabad 2007 (78) RLT 525 (CEST-Bang)
(iii) CCE, Cochin. v. Akash Trading Co.
(iv) CCE, Cochin v. Raghav Enterprises
(v) CC, Cochin v. Royal Impex 2006 (204) ELT 567 (Tri. - Bang.)
(vi) G.M. Exports v. CC, Bang 2006 (198) ELT 354 (Tri. - Bang)
(vii) C.J. Shaw and Co. v. C.C., Kandla 2006 (196) ELT 154 (Tri.-Mum)
(viii) Bansilal Leisure Parks Ltd. v. C.C., Kolkata 2005 (191) ELT 301 (Tri.-Del)
(ix) Sneh Enterprises v. C.C., New Delhi
(x) Final Order No. 14 to 20/2007 dated 4.01.07 of Chennai Bench of the Tribunal
4. The learned JDR contended that the issue is squarely covered by the decision of the Tribunal (Anti-Dumping Bench) in the case of NITCO Tiles Ltd. v. Designated Authority .
5. We have gone through the records of the case carefully. The fact that the appellant has imported CFL lamps is not in doubt. Even though in the Bill of Entry, they have shown the classification under CTH 8535.29 which does not relate to CFL lamps in the course of hearing, the learned Advocate did not dispute the fact that the goods are only CFL lamps leviable to anti-dumping duty. The learned Advocate cited large number of cases including the cases decided by this Bench wherein it was held that when the goods are imported after the expiry of the Notification imposing provisional anti-dumping duty, the final anti-dumping duty cannot be leviable. In other words, it was held that when them is no charging provision at the time of import, no duty could be levied. However, the learned JCDR relied on the decision of the Principal Bench, (Anti-Dumping Bench) in the case of NITCO Tiles Ltd. v. Designated Authority , wherein it has been held that even after the expiry of the Notification, imposing provisional anti-dumping duty, the imports during the interregnum period are liable to definitive anti-dumping duty which is imposed with effect from date of imposition of provisional duty. In this decision, the Tribunal has relied on the decision in the case of Apollo Tyres Ltd. v. Designated Authority 2005 (192) ELT 1137 (Tribunal). At this stage, we cannot say that the appellant has prima facie a strong case. The contentions regarding time bar and issue of corrigendum have also been examined by the lower authority. We do not feel that the appellant has a very strong case on merits. No financial hardship has also been urged before us. In these circumstances, we direct the appellants to pre-deposit entire duty amount, within a period of three months from the date of receipt of this order. The stay application is rejected. Call on to report compliance on 10th July 2007. Failure to comply this order will entail dismissal of the appeal in terms of Section 129E of the Customs Act.
(Pronounced in the open court on 9.04.2007)