Custom, Excise & Service Tax Tribunal
) Shri Akshay Mahajan vs Commissioner Of Customs (Port), ... on 13 September, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
1-2) CUSTOMS APPEAL NOs.C/A/140-141/2009
(ARISING OUT OF ORDER-IN-ORIGINAL NO.KOL/CUS/PORT/02/2009 DATED 09.01.2009 PASSED BY COMMISSIONER OF CUSTOMS (PORT), KOLKATA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
1) SHRI AKSHAY MAHAJAN,
SOLE PROPRIETOR,
M/S. JUPITER TRADING CO, NEW DELHI
AND
2) SHRI ANUJ MAHAJAN,
SOLE PROPRIETOR,
M/S. KRISHNA TRADING CO, NEW DELHI
APPELLANT (S)
VERSUS
COMMISSIONER OF CUSTOMS (PORT), KOLKATA
...RESPONDENT (S)
APPEARANCE:
DR. S. CHAKRABORTY, ADVOCATE ASSISTED BY SHRI A.BISWAS, ADVOCATE FOR THE APPELLANT(S);
SHRI D.K.ACHARYA, SPECIAL COUNSEL ASSISTED BY SHRI S.CHAKRABORTY, A.R.( ASSTT. COMMR.) FOR THE REVENUE.
CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing:31.07.2013 Date of Decision:
ORDER NO.FO/A-71043-71044/2013 Per Dr. I.P.LAL These Appeals have been filed against Order-in-Original No.KOL/CUS/PORT/02/2009 dated 09.01.2009 passed by Commissioner of Customs (Port), Kolkata.
2. The facts of the case in brief are that M/s. Jupiter Trading Co. had filed a Bill of Entry No.159877 dated 06.03.2003 declaring the goods as Tube for Emergency Light. The goods imported were 1,80,000 pieces of 9 watt and equal number of the goods of 11 watt of Evershine brand, valued at the rate of US $0.050 (Rs.2.25 per piece) and US $0.057 (Rs.2.30 per piece). Total Invoice Value is US $18900/-(CIF) as per Invoice No.SUGS-81083C dated 21.01.2003. M/s. Krishna Trading Co., another importer had also imported similar goods and filed a Bill of Entry No.159931 dated 06.03.2003, declaring therein, the imported goods as Tube for Emergency Light (of 9 watt and of 11 watt) of Oscar Brand. They had submitted the Invoice No.SUGS-81083C dated 21.01.2003 for import of 1,00,000 and 58,600 pieces of 9 watt and 11 watt tubes respectively. The Unit Price of the goods is declared to be US $0.050 (Rs.2.25 per piece) and US $0.057 (Rs.2.30 per piece). Total CIF Value as per Invoice is US $8223/-(CIF). In both the above cases, the shippers of the goods were M/s. China Machinery Corporation and Equipment Import and Export Sujhou Company Ltd., the country of origin of the goods had been declared as China. The CHA for both the consignments was M/s. Maxim International. Both the Bills of Entry were assessed as per the declared description and the value. On examination, the proper officer had found them to be the goods other than CFL. The description tallied as per Invoice and Packing List.
3. Acting on the information that the above importers were indulging in evading the Anti-Dumping Duty on Compact Fluorescent Lamp(CFL) of Chinese origin, by misdeclaring the description, the Officers of DRI detained/seized the consignments imported by the above importers. The Officers drew the samples and forwarded the same for testing to M/s. Electronics Regional Test Laboratory (East), Standardization Testing and Quality Certificate Directorate, Government of India, Kolkata. While forwarding the samples, a query was raised to determine whether the lamp meets the parameter of CFL. The Test Report mentions the results as meets the requirements of CFL. Trade enquiries with M/s. Gupta Electricals, Ezra Street, Kolkata (importer and trader of CFL) and M/s. Khandelwal Enterprises of Rabindra Sarani, Kolkata (dealing in CFL) further revealed that imported goods were CFL without chokes, having trade name of PL lamps and that their MRP varied between Rs.25.00 to Rs.63.00 per piece. Contemporary import of identical goods declared in case of Bill of Entry No.I-424 dated 10.10.2002 and the Bill of Entry No.I-109 dated 04.10.2002, were found to be US $0.15 per piece. In view of these facts, show cause notice bearing DRI F.No.36/Kol/App/2003/1002 under even number 922-928 dated 22.05.2003, alleging misdeclaration of the description of the goods to evade Anti-Dumping Duty and the under-valuation, was issued to various noticees. The show cause notice was adjudicated by the ld. Commissioner of Customs (Port), Kolkata.
4. The ld. Adjudicating Authority redetermined the value of the goods based on the contemporaneous imports, as US $0.15 per piece (CIF) in terms of Rule 5 read with Rule 8 of the Customs Valuation Rules, 1988, against two impugned Bills of Entry. Against the goods imported under Bill of Entry No.159877 dated 06.03.2003 and consigned to M/s. Jupiter Trading Co., the ld. Adjudicating Authority confirmed the duty-demand (including Anti-Dumping Duty) of Rs.1,95,30,315/- along with the interest @15% on the said duty from the date of assessment till the date of payment, confiscated the goods with an option to redeem the said goods on payment of redemption fine of Rs.13.00 lakh and imposed penalty of Rs.1,95,30,315/- on Shri Akshay Mahajan, Proprietor of M/s. Jupiter Trading Co., New Delhi. In case of the goods imported against Bill of Entry No.159931 dated 06.03.2003 (consigned to M/s. Krishna Trading Co.), the ld. Adjudicating Authority confirmed the demand of duty (including Anti-Dumping Duty) of Rs.86,07,635/- along with interest, confiscated the goods with an option to redeem the said goods against redemption fine of Rs.6.00 lakh and imposed penalty of Rs.86.00 lakh on Shri Anuj Mahajan, Proprietor of M/S. Krishna Trading Co., New Delhi. The Appellants have challenged the aforesaid Order of the Commissioner of Customs (Port) before this Forum.
5. Ld. Advocate for the Appellants, at the outset, denied that the impugned goods were CFL and therefore, the Anti-Dumping Duty is not leviable on the said goods.
5.1. The ld. Advocate submitted that the Test Report of ERTL does not give the reasons for the opinion that samples tested were CFL. No method of test is described and therefore cryptic and therefore, have no force in the eyes of law. It has been further stated that the said opinion of ERTL was at the back of the appellants and there is no evidence that the same was from consignment in question. It is the contention that they had produced expert advice and also requested for the cross-examination of ERTL but the same was not permitted. Accordingly, they made an application before the Ld. Adjudicating authority during the proceedings of adjudication to open the container and permit to take fresh samples and obtain fresh opinion from recognized/approved laboratory. However, despite permission of the adjudicating authority so granted, DRI for months together refused to open the container. On the contrary, DRI informed the appellants that in case it gets same examine the name of the said laboratory be given in advance. Thus the appellants were not permitted to have second opinion of the experts. Since the subject goods being deteriorated day by day and lost its life, at the later point of time made a request for re-export with intent not to waste the foreign exchange already remitted to the shipper in China. Ld. Adjudicating authority without looking into the record and in violation of natural justice passed the impugned order.
5.2. The Ld. Advocate has cited various case-laws holding that anti dumping duty is not chargeable on the parts of CFL. He stated that in case of Commr. of Customs, Cochin Vs. Chetan Enterprises reported in 2007 (207) ELT 403 (Tri-Bangalore), the imported goods described as saving lamps were falling under Chapter Sub-Heading 8539.29. The goods were cleared accepting their classification. The Tribunal held anti-dumping duty was not chargeable as the CFL falls under Chapter Sub-Heading 8539.31. It is the contention that in the appellants case the goods were assessed not under chapter heading 8539.31 and therefore anti-dumping duty was not imposable.
5.3. It is the submission of the ld. Advocate that in case of Philips India Vs. CCE, Mumbai reported in 2004 (166)ELT 49 (Tri.-Mumbai), Tribunal held that the imported items discharged to mounted on shell cover and plastic cones were considered only part of CFL meant for further manufacture of CFL.
5.4. The ld. Advocate further cited the case law in case of Wipro Ltd. Vs. Commr. of Customs, Chennai reported in 2007 (217) ELT 558 (Tribunal). In this case the appellants had imported shield glass tubes and claimed classification under CTH 8539.90. The authorities sought to recover anti-dumping duty under notification No. 138/2002-CUS dated 10/12/2002 by holding the goods to be CFL after getting a sample of the goods tests at Electronics Regional Test Laboratory, Kolkata and considering their report. Tribunal held that imported items were only part of CFL, they required to be fitted with plastic end cap and choke PCB assembly so that a CFL could emerge. Tribunal held Anti-Dumping Duty not leviable on the glass tubes.
5.5. The ld. Advocate submitted that in case, before Advance Ruling in the case of Permalite Electricals Pvt. Ltd. (supra), it is held that Sealed Quoted Tube with filament proposed to be imported by the applicant is not a CFL system even without choke, as is commonly understood in concerned trade or market, hence will not be leviable to Anti-Dumping Duty.
5.6. It is also his submission that the Boards Circular issued under letter F.No.528-53/2007-Cus.TRU dated 25.10.2007 clarified that Anti-Dumping Duty is leviable on CFL and parts of CFL. This clarification had been issued based on a clarification of the Directorate General of Anti-Dumping and allied duties (DGAD).
5.7. The ld. Advocate submitted that the goods imported against the impugned Bills of Entry were already assessed under the provisions of Section 17(4) of the Customs Act, 1962 and found during examination by the proper officer as per Invoice and Packing List and other than CFL. The Revenue cannot review its Order of Assessment in regard to under-valuation. In regard to under-valuation, the ld. Advocate has submitted that the goods under contemporary import were not comparable and that in their case, price was arrived after negotiation with the shippers.
5.8. The ld. Advocate requested for re-adjudication of the case after re-testing of fresh samples drawn in presence of the Appellants/their authorized representatives inasmuch as they had disputed the Test Report, the ld. Adjudicating Authority had acceded to their request, but ultimately, their case has been decided without complying with the instructions of the ld. Adjudicating Authority. On query from the Bench, he informed that the goods were still in the custody of the Revenue and he suggested that the sample can be sent for testing to M/s. Electrical Regional Test Laboratory(North), near Property No.S1, Okhla Industrial Area, Phase-2, New Delhi-110 020.
6. Per contra, the ld. Special Counsel appearing for the Revenue has submitted that there has been a specific information of DRI that CFL has been misdeclared as electrical goods to avoid the Anti-Dumping Duty. The samples had been tested by Electronics Regional Test Laboratory (East), Government of India, confirming the imported goods as CFL. Since the CFL of Chinese origin were subjected to Anti-Dumping Duty under Notification No.138/02-Cus. dated 10.12.2002, whatever value is taken, Anti-Dumping Duty is attracted, as the goods in question were determined by expert laboratory as CFL. As such, various case-laws referred to by the Appellants are not relevant for the present case. As regards advanced rulings, it is binding only on the applicant who had sought it. Ld. Special Counsel submitted that identical goods were imported against a price of US $ 0.15 per piece, vide Bill of Entry No.I-424 dated 10.06.2002 and I-109 dated 04.10.2002. The market enquiry also indicated retail sale price of Rs.57 and Rs.63 per piece in case of Tube for emergency light of 9 watt and 11 watt respectively. The importer moved the Honble High Court, the Honble High Court directed the DRI to summon the persons to record their statements and complete the investigations, giving some time-limit for issue of show cause notice. In view of these facts, the ld. Special Counsel stated that findings of the ld. Commissioner in his Order-in-Original are well-founded on facts and law. On a specific query of the Bench, the ld. Special Counsel confirmed that they are still available in the custody of the Revenue. He submitted that to resolve the issue, he does not have any objection for re-testing of the samples and in case, the Tribunal so desires, the samples should be got re-tested from M/s. Centre for Electronics Test Engineering, ERTC (East) Campus, Block-DN, Sector-V, Salt Lake, Kolkata-700 091.
7. Heard both sides and perused the records. The issue in dispute is whether the impugned goods, are CFL (with/without choke) attracting Anti-Dumping Duty or as the case may be, other than CFL. According to the Revenue, the items under import though declared as Tube for Emergency Light, were found to be CFL on testing, as determined by the expert laboratory. Further, the market enquiries and the contemporary imports of the similar goods indicated under-valuation. It is, however, the case of the Appellants that the items under import were not CFL, as they had imported only electrical goods i.e.Tube for Emergency Light. After perusal of the various case-laws cited supra, we observe that the items such as, Discharge Tube mounted on shell cover, plastic cone, sealed glass tubes etc. when imported separately, were not considered as CFL. It is held that these were parts, as they required various other components like choke, PCB assembly and plastic end caps which could be fitted to form CFL. We also find that the Boards Circular issued under letter F.No.528-53/2007-Cus.TRU dated 25.10.2007 clarified that Anti-Dumping Duty is leviable on CFL and parts of CFL. This clarification had been issued based on a clarification of the Directorate General of Anti-Dumping and allied duties (DGAD). We find that in the present case, the Appellants have been disputing to the findings of Test Reports and the Trade Enquiry. According to the ld. Advocate, the samples were drawn at the back of the Appellants/the authorized representative of the Appellants. While the ld. Adjudicating Authority had accepted their request for retesting of the samples and asked the ADG (DRI) for arranging to draw fresh samples, but the same had not been complied with. We find that the ld. Adjudicating Authority has mentioned under para 58 of his Order that during personal hearing on 15.10.2003, vide letter F.No.S-33-97/2003/Adjn. dated 03.11.2003, ADG(DRI), Kolkata was requested that the sealed samples already drawn in respect of the consignment should be sent for re-testing to some Government laboratory. One set of samples may also be sent to laboratory at the importers choice. However, the impugned Order-in-Original is silent on the outcome of the fresh test, if any.
8. It, therefore, appears that samples were not re-tested in spite of the importers disputing the earlier Test Report and that the direction of the ld. Adjudicating Authority for re-testing was not followed. In view of these facts, we are of the considered opinion that principle of natural justice was not followed in this case and therefore, we feel that in the interest of justice, it would be prudent to remit back the case to the ld. Adjudicating Authority for fresh order, after drawal of fresh samples in presence of the Appellants/their authorized representatives and its re-testing by forwarding the representative samples to both the Laboratories named by the ld. Advocate for the Appellants and the ld. Special Counsel to determined whether the impugned goods were the CFL with/without choke or otherwise. A copy of the Test Report should be furnished to the Appellants before the case is taken up for adjudication. It is needless to mention that an opportunity of hearing should be given to the Appellants before passing a fresh Order.
9. We make it clear that we have not expressed our view on merits of the case and both the sides are at liberty to adduce evidences in their support before the ld. Adjudicating Authority. All issues are kept open. Both the Appeals are thus allowed by way of remand.
(Pronounced on 16.09.2013)
Sd/- Sd/-
(D.M.MISRA) (I.P.LAL)
JUDICIAL MEMBER TECHNICAL MEMBER
DUTTA/
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