Customs, Excise and Gold Tribunal - Ahmedabad
Anchor Daewoo Inds. Ltd. And Shri Suresh ... vs Cc on 18 May, 2007
Equivalent citations: 2007(120)ECC43, 2007ECR43(TRI.-AHMEDABAD), 2007(214)ELT230(TRI-AHMD)
ORDER M.V. Ravindran, Member (J)
1. This appeal is directed against the order-in-original No. KDL/COMMR/06/2007, dt. 31.1.2007.
2. The relevant facts that arise for consideration are:
3. The appellant company has imported "glass parts of lamp making electronic parts for lamp making", and filed two bills of entries for the clearances of the said good. It was observed by the authorities from the commercial invoice and packing list that the said goods were originally from Peoples Republic of China and the said goods were of Chinese origin. The authorities on examination of the goods came to the conclusion that the import of equal number of gas filled glass tubes and PCB require only manual assembly and fitting to form a complete compact fluorescent lamp (CFL). Compact fluorescent lamps when imported from China, were liable to anti dumping duty as per the provisions of Section 9A of the Customs Act, 1962 during the relevant period. The appellants were issued a Show Cause Notice directing them to show cause as to why the said consignment imported by them be not confiscated on the ground of mis-declaration of the goods and why the said goods be not considered as compact fluorescent lamps and anti dumping duty be not imposed and why the penalty should not be imposed on them. The appellant contested the SCN on the ground that the said part as imported by them would not be compact fluorescent lamp as thought to be so by Revenue and that they have imported only the parts, hence, all the charges in the SCN were denied. The adjudicating authority did not accept the contention of the appellant and held that the parts imported by the appellant would be compact fluorescent lamp as per the G eneral Rules for interpretation and since the appellants have mis-declared the goods, the said goods are liable for confiscation and held that penalty is imposable on the appellant. The adjudicating authority has given an option to the appellant to redeem the goods on payment of redemption fine, in addition demand for Anti dumping duty was also confirmed. The appellants are in appeal against that order.
4. Learned advocate appearing on behalf of the appellant takes us through the entire show cause notice and reply filed by them. It is his submission that in the reply to the SCN, the appellant have clearly indicated that there are at least 10 to 12 further processes and checks to be done on the imported goods to make them as compact fluorescent lamp. He also drew our attention to the fact that the appellant had clearly indicated to the authority that for making this product as complete CFL, further inputs are required and indicated that these two inputs are "Surge Arrester" and "22 E Resisters". The learned advocate further points out that the statements of the Indian manufactures relied upon by the Revenue would also indicate that the parts which were imported by them, per se, cannot be termed as CFL until further processing is done. He also drew our attention to Notification No. 138/2002-Cus, dt. 10.12.02 and submits that the anti dumping duty as sought to be imposed by the said notification was in respect of complete CFL and not parts thereof. He also drew our attention to the Office Memorandum of DGAD. He relies upon the decision of Tribunal in case of Philips India Ltd. v. CC Mumbai as reported at in case of Permalite Electricals (P) Ltd. as reported at for the proposition that the imposition of anti dumping duty are in respect of specific items and can not be invoked for imposition of anti dumping duty on the part.
5. Learned SDR on the other hand, contends that the issue involved in this case is very clearly covered by the decision of the Tribunal in the case of Roma International v. CC Mumbai as reported at . It is his submission that the appellant imported goods in knocked down condition to avoid payment of anti dumping duty. It is his submission, that the experts in the field have clearly indicated in their statement that the parts which are imported by the appellant if put together would amount to CFL. He reiterated the findings of the adjudicating authority.
6. Considered the submissions made in detail by both sides and perused records.
7. The anti dumping duty is imposed on the goods which are dumped into India by Directorate General, Anti Dumping and Allied Duty. On complete investigation of the complaint of dumping of a specified article, a Notification No. 138/02-Cus, dt. 10.12.02 was issued by the Ministry of Finance, Deptt. of Revenue, on recommendation by the DGAD for imposition of anti clumping duty on the "Compact fluorescent lamp with or without choke". It is seen from the notification that the specified article on which definitive anti dumping duty was imposed was a complete compact fluorescent lamp and not on a semi-knocked down condition of CFL. It is also seen from the records that DGAD imposes anti dumping duty on the SKD condition of the specified article as and when it comes to the conclusion that even the parts are also dumped into India. (Notification No. 125/2002-Cus, dt. 13.8.03 on non-brass metal flash light). On this factual understanding of the imposition of definitive anti dumping duty, we proceed ahead to decide the issue in this case. It is on record that appellants had imported parts of CFL. The parts have been found as has been declared by the appellant. We find that the parts the condition in which they were imported could in itself, may not answer to the description of a complete CFL. There is no evidence put on record by the authorities, as to whether the sample being tested by them in the Customs laboratory in order to ascertain whether these parts in themselves can be considered as a complete CFL. In the absence of any such evidence, we find that the process of manufacture (as explained by the advocate from the record) would be required to be undertaken on these parts to make these parts as a complete CFL, this is not controverted by the Revenue.
8. We find that the issue of whether the parts of CFL would in itself be liable for imposition of anti dumping duty was a issue between two ministries of Govt. of India. The Office Memorandum No. 162/2006-DGAD, dt.1.5.06 as issued by DGAD is as under:
No-162/2006-DGAD Government of India Ministry of Commerce and Industry Department of Commerce Directorate General of Anti Dumping and Allied Duties Room N.260-A, Udyog Bhawan, New Delhi Dated the 1st May, 2006 OFFICE MEMORANDUM Sub: Parts of CFL imported under HS code 98539.90 being classified under 8539.31 ready to use CFL - regarding.
Please refer to your Office Memorandum No. 354/205/2001-TRU (Part I) dated 20th April, 2006, forwarding copy of representation dated 4th April, 2006 of M/s Khaitan Electricals Ltd., whereby clarification has been sought on the scope of the product CFL imported from China PR and covered under Anti Dumping Investigation conducted by the Designated Authority. In this regard, it is clarified that:
a. Anti dumping duties were recommended/imposed on the following two types of CFLs:
i) Complete, ready to use compact fluorescent lamps wherein choke is integrated within the lamp.
ii) Complete, ready to use compact fluorescent lamps wherein choke is external.
b. Anti dumping duties were not recommended on parts/components of CFL.
c. "CFL with choke" is complete ready to use compact fluorescent lamps wherein choke is an internal part.
d. CFL without choke as defined in the final findings is complete ready to use compact fluorescent lamps wherein choke would be external part.
2. This issues with the approval of the Designated Authority.
Sd/-
(Rajesh Jain) Jt. Director (Cost) Tele:23081732 Fax: 23083418 Shri J. Sahay, Technical Officer (TRU), Ministry of Finance, Department of Revenue, Tax Research Unit, North Block, New Delhi.
(Emphasis provided)
9. It can be noticed from the above reproduced office memorandum, the authority that recommends imposition of definitive anti dumping duty, have clearly indicated in the above memoranda that (a) (i), (ii) that the anti dumping duty were recommended on ready to use compact fluorescent lamp, whether chokes are integrated within the lamp or whether the choke is external. It is to be understood that the authority which recommends anti dumping duty has clearly indicated that the anti dumping duty has to be imposed only on ready to use CFL. It is not brought on record by the Revenue in this case that the goods imported by the appellant and which were sought to be cleared are "ready to use" compact fluorescent lamps. In the absence of any evidence to suggest that the imported goods were ready to use CFL, we have hold that imported goods are parts of CFL and they are not liable for imposition of anti dumping duty as per the office memorandum (as reproduced above).
10. Further, we are fortified in our views by the judgments and the order of Tribunal in the case of Philips India Ltd. (Supra). We may read the findings:
4. The first issue for consideration is whether Notification No. 128/2001 imposing anti dumping duty on CFL with choke and CFL without choke is leviable when only substantial parts of the same are imported. The second issue is whether Rules of Interpretation [2(a)] can be invoked while determining whether are not anti-dumping duty is leviable when only part of the specified goods are imported. We agree with the learned advocate that the levy of ADD was only in respect of "product under consideration" by the appropriate anti dumping authority. The "product under consideration" which led to the issuance of above notification was CFL with all electronic components. It is obvious that what has been imported is not a complete CFL with all electronic components. The notification levied ADD on the specified product under consideration by the authority. The specified product is stated to be CFL with one or more glass tubes and which have all lighting elements, all electronic components and cap integrated in the lamp foot. Compact with CFL without choke or ballast are also included". The question whether rules of interpretation can be invoked to determine the scope of a notification imposing ADD has been carefully examined by us. That a notification should be construed strictly is an accepted position in law. It is not possible to interpolate words into a notification. Since the notification imposes ADD only on CFL, one will have to see whether what is imported is CFL at all. It has been brought out that the importers in addition to the imported parts procured local components upto a certain value to manufacture CFLs. If the intention of the Anti dumping authority is to levy ADD on parts of CFL as well the notification should clearly say so.
11. It can be seen from the above reproduced findings that the Division Bench was considering an identical issue in respect of CFL on which anti dumping duty was imposed by the earlier notification and the fact of the current case are similar to the issue which was before the Division Bench. It is noticed that the issue involved in the current case is squarely covered by the decision of the Hon'ble Tribunal in case of Philips India Ltd. (supra).
13. As regards the case law relied upon by the learned SDR (Roma International), the issue involved was in respect of the CFL which was of "pin type". The fact of that case and current case before us are not identical, as the goods which were imported in the case of Roma International were totally different and distinct from the goods imported by current appellant, hence the case law does not support the Revenue's case. Accordingly, we hold that the goods imported by the appellant in this case are not ready to use. CFL, but are parts/components of CFL and anti dumping duty is not imposable on these parts under Notification No. 139/2002-Cus, dt.10.12.02. It is on record that appellant had declared the imported items as parts and hence the charge of mis-declaration also fails. If the charge of mis-declaration fails, the confiscation of the imported goods is liable to be set aside and we do so. Since configuration is set aside, consequent penalties imposed on appellants are also vacated.
14. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any.
(Pronounced in Court on 18.05.07)