Custom, Excise & Service Tax Tribunal
Roma International vs Commissioner Of Customs (Import), ... on 27 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Application No. C/MA(Ors) 584/11 and Appeal No. C/106/06 (Arising out of Order-in-Original CAO No. 110/2005/CAC/CC(I)/AKP dated 31.10.2005 passed by Commissioner of Customs (Import), Mumbai.) For approval and signature: Honble Mr.P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Roma International Appellant (Represented by: Mr. Rajiv Gupta, consultant) Vs Commissioner of Customs (Import), Mumbai Respondent (Represented by: Mr. A.K. Prasad, Jt CDR) CORAM:
Honble Mr.P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 27.04.2011 Date of Decision: 27.04.2011 ORDER NO..
Per: P.G. Chacko
1. This appeal filed by the assessee is directed against an order passed by the Commissioner of Customs (Import), confirming demand of Anti-Dumping Duty of Rs 56,32,461/- against the appellant after holding that the commodity imported by them was classifiable under Tariff Item 8539 31 10 and was covered by the description Compact Fluorescent Lamp (CFL) in Customs Notification No. 138/2002-Cus dated 10.12.2002. In this appeal, there is also challenge to the confiscation of the goods ordered in terms of Section 111 (d) and (m) of the Customs Act, as also to fine of Rs One lakh imposed in lieu of such confiscation. Further, the penalty of Rs 50,000/- imposed on the appellant under Section 112 (a) of the Act is also under challenge.
2. Miscellaneous Application No. 584/11 filed by the appellant was considered by us on 20.4.2011. It sought permission for bringing certain additional documents on record under Rule 23 of the CESTAT (Procedure) Rules. After examining the said documents and their nexus to this case, and after hearing both sides, we allowed the application on 20.4.2011. Consequently, a paper-book containing photocopies of documents paginated 224 to 386 was taken on record. On that day, the learned consultant for the appellant was also heard in the appeal. The learned Jt CDR for the Revenue has been heard today in reply and the learned consultant has been heard in rejoinder.
3. The basic facts of this case will now be stated briefly. The appellant had filed Bill of Entry No. 358472 dated 22.5.2003 for clearance of a consignment of goods imported from the Peoples Republic of China. The consignment consisted of 50,000 pieces of what was described as Unbranded Electronic 9W PL Tube and equal number of what was described as Unbranded Electronic 11W PL Tube. Both categories were classified, in the Bill of Entry, under Tariff Item 8539 29 90. The Bill of Entry further indicated the goods as RSP ITEM. As it appeared to the Customs authorities that the goods imported by the appellant were actually Compact Fluorescent Lamps (CFL) which attracted Anti-Dumping Duty in terms of Notification No. 138/2002-Cus ibid and that the goods were misdeclared in the Bill of Entry with intent to evade payment of Anti-Dumping Duty (ADD), the consignment was not allowed to be cleared. Subsequently, after completing investigations into the import, the department issued show-cause notice dated 20.11.2003 for recovery of Anti-Dumping Duty amounting to Rs.56,32,461/-, confiscation of the goods and imposition of penalty on the importer. This show-cause notice came to be adjudicated upon against the importer resulting in confirmation of the demand of Anti-Dumping Duty, confiscation of the goods (with option for redemption on payment of fine of Rs 1,00,000/-) and imposition of penalty of Rs 50,000/- on the importer. Aggrieved by this order of the Commissioner of Customs (Import), the assessee preferred an appeal to this Tribunal (C/536/04-Bom) which was disposed of as per final Order No. A-776/WZB/2004/C-II dated 1.9.2004 since reported in 2004 (174) ELT 83 (Tri-Mumbai). That was a remand order of this Bench, wherein the description Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act, 1975 under Notification No. 138/02-Cus came to be examined and interpreted to enable the adjudicating authority to reexamine the issue and it was ordered (a) that the assessee should be required to furnish details of the missing parts of CFL to enable the adjudicating authority to consider the coverage of the subject goods for purpose of the above Notification; (b) that the adjudicating authority should obtain necessary clarification from the designated authority (Anti-Dumping) as to whether the item under consideration would come within the ambit of the above Notification; and (c) that it would be open to the adjudicating authority to obtain the views of the affected domestic industry, if necessary, to reach a conclusion regarding coverage, or otherwise, of the goods under the Anti-Dumping Notification. In the result, the substantive issue was required to be readjudicated by the Commissioner of Customs (Import).
4. The learned Commissioner of Customs (Import), in the de novo proceedings, obtained clarification of the designated authority and furnished a copy thereof to the assessee. According to the learned Commissioner, the clarification offered by the Directorate-General of Anti-Dumping and Allied Duties (DGAD) was sufficient for the purpose of determining whether the goods imported by the assessee fell within the scope of Notification No. 138/02-Cus. Therefore, he did not find it necessary to seek the views of the domestic industry and also felt that it was not necessary to allow the assessee to cross-examine any expert from the office of DGAD. The assessee filed written submissions with the Commissioner and was subsequently heard by him. The adjudicating authority ultimately held that the goods imported by the assessee were CFLs without choke and attracted ADD under the aforesaid Notification. Having classified the goods under Tariff Entry 8539 31 10 and having rejected the declared description (PL Tube) and having held the goods to be CFLs without choke, the adjudicating authority confiscated the goods under Section 111 of the Customs Act on the ground of misdeclaration and imposed a fine of Rs 1,00,000/- in lieu of confiscation. It also imposed a penalty of Rs 50,000/- on the importer. The order passed by the Commissioner in de novo adjudication of the show-cause notice is presently under challenge.
5. The learned consultant for the appellant has extensively referred to the additional documents brought on record, in his endeavour to show that the goods imported by the appellant were only parts/components of CFLs. It is submitted that a CFL must essentially have the following components to make a finished product to be called CFL:
(i) Sealed Coated Tube with Filament (one or more glass tube);
(ii) Plastic Lamp Base (of Glass Tube);
(iii) Starter (lighting elements);
(iv) Populated PCB (choke/ballast) (electronic components);
(v) Connecting Wires;
(vi) Cap compatible with ordinary lamp holder (GLS) (Bayonet cap-B22)-integrated in the lamp foot.
It is submitted that the commodity imported by the appellant did not have connecting wire, starter or any cap for fitment to General Lighting System (GLS) and also did not have choke (ballast). It was only a PL Tube, item No. (i) above, which was only a part/component of CFL. It is submitted that the goods imported by the appellant were intended to be supplied to industrial consumers who were manufacturers of CFLs, emergency lamps etc. According to the learned consultant, the PL Tubes did not answer the description of goods in the aforesaid Customs Notification. It is submitted that the product covered by that Notification was CFL with one or more glass tubes and having all lighting elements and electronic components and also the cap integrated in the lamp foot. According to the learned consultant, CFL without choke/ballast was not covered by the Notification, even though this item was also mentioned by the Designated Authority as an item exigible to Anti-Dumping Duty when imported into India from the Peoples Republic of China. In this connection, it is argued that the Notification has got to be interpreted strictly. The Notification specified CFLs only and did not specify CFLs without choke. Nothing can be added to the text of the Notification, nor can any word/expression in the Notification be deleted or amended. According to the rule of strict interpretation, only complete CFLs, complete with all lighting/electronic/housing elements, can be held to be chargeable to Anti-Dumping Duty. In support of this argument, the learned consultant has relied on an order of the Honble High Court of Delhi viz., Order dated 1.11.2006 in appeal No. 7/2005 (Plaza Lamps and Tubes Ltd vs Commissioner of Customs [2007 (209) ELT 182 (Del), wherein it was held that Anti-Dumping Duty was not imposable on pie tubes of different lengths sealed to a plastic base (metal base in the case of single pie) with two leads from the assembly. The learned consultant submits that the item imported by the appellant is no different from the one considered by the Honble High Court and, therefore, the demand of Anti-Dumping Duty should be set aside. It is further pointed out that the Honble High Court followed, with approval, a ruling of the Authority for Advance Rulings (AAR). The AAR had, in the case of Permalite Electricals (P) Ltd [2004 (168) ELT 164 (AAR)] held the view that the item which was proposed to be imported by the said company was not a CFL without choke as commonly understood in the trade. The proposed item was held to be a sealed coated tube with filament. The learned consultant has also relied on a catalogue, which is claimed to have been obtained from the office of CESTAT, New Delhi under the Right to Information Act. This material is available at pages 343 to 347. This document contains tabulated particulars of glass tubes of different types described as Single Pie, Double Pie and Triple Pie. Diagrammatic representation of the three items of glass tubes are also found in this document. It is clamed by the learned consultant that the item imported by the appellant is the Single Pie type of glass tube and the same is only a part/component of CFL inasmuch as the catalogue nowhere describes the glass tube as a CFL.
6. The learned consultant has also produced copies of what is claimed to be product catalogue of the Chinese manufacturer of the subject goods. It is submitted that, though the goods were supplied by a Chinese trader, the appellant has been able to obtain the manufacturers catalogue which, on page 28 thereof, provides the specifications of PL Internal Start Single H Single (?), of different types including 9W and 11W. The Special Features of the product are also seen mentioned on page 28 of the catalogue. This page also contains a clear picture of the commodity. A sample of the commodity whose picture figures on page 28 of the catalogue has also been produced by the learned consultant and we have inspected the same. (A picture of this sample is included in this order vide figure I on page 9). He has also shown us a sample of what is claimed to be an integrated CFL. (Its picture is also included vide figure II on page 9). The integrated CFL shown by the learned consultant consists of a set of three parallel U shaped glass tubes fixed to a circular plastic base, which is joined to a plastic cup, which, in turn, is fixed to a metallic cap with two metallic leads at its bottom. The plastic cup can be opened by unscrewing the circular plastic base of the glass tubes. On opening the plastic cup, we have seen a PCB with some electrical wires connected to the bottom of the glass tubes and some other wires connected to the top of the cap below. We are told that this PCB with its accessories would work as a choke/ballast. The metallic cap (the bottom part of the integrated CFL sample shown to us) has two metallic pins on opposite sides which are said to be used for holding the lamp within the holder of the GLS. After showing this sample [figure II] to us, the learned consultant has endeavoured to distinguish it from the sample of what is called PL Tube. It is his submission that the glass tube (PL Tube) depicted on page 28 of the catalogue of the manufacturer, which is without the necessary lighting elements or electronic components and also without choke/ballast, cannot come anywhere near the description of an integrated CFL and hence would not attract anti-dumping duty under the Notification.
7. The learned Jt CDR has contested the above case of the learned consultant. It is submitted that the Notification for levy of Anti-Dumping Duty on CFLs originating in, or exported from, Peoples Republic of China and Hong Kong, and imported into India, was issued by the Central Government on the basis of the final findings of the Designated Authority, dated 14.11.2002. It is submitted that the designated authority, in its final findings, specifically held that CFLs without choke (or ballast) were also included in its investigations. In other words, the products under Anti-Dumping investigations included both CFL with choke/ballast and CFL without choke/ballast, originating in, or exported from, the Peoples Republic of China and Hong Kong, and imported into India. The Notification proposed levy of Anti-Dumping Duty on all imports of CFLs from Peoples Republic of China, whether with choke or without choke. In this connection, the learned Jt CDR has invited our attention to the relevant recital in the Notification. It is submitted that the item imported by the appellant was nothing but CFL without choke and the same can be readily used by the ultimate consumer without the aid of any other electronic elements/components/parts. The imported item could be readily inserted in the socket/holder of the General Lighting System (GLS) having a choke/ballast inbuilt therein. In other words, according to the learned Jt CDR, the item imported by the assessee would squarely answer the description CFL without choke. This item is rightly classifiable under SH 8539 31 10 of the First Schedule to the Customs Tariff Act. This very item is squarely covered by Notification No. 138/02-Cus and, therefore, Anti-Dumping Duty would be leviable thereon.
8. The learned Jt CDR submits that the ruling of the Authority for Advance Ruling, relied on by the learned consultant, cannot be a precedent for the present case inasmuch as, by virtue of Section 28J of the Customs Act, that ruling is applicable to, and binding on, M/s Permalite Electricals (P) Ltd only and nobody else. Therefore, the advance ruling in the case of Permalite Electricals (P) Ltd (supra) is not applicable to this case. It is further submitted that the Honble High Courts decision in the case of Plaza Lamps & Tubes Ltd vs Commissioner is also not applicable to the instant case inasmuch as it is yet to be established by the appellant that the item considered by the Honble High Court in that case and the one presently under consideration are one and the same.
9. It is further pointed out that the appellant, even in their written submissions filed before the adjudicating authority in de novo proceedings, admitted that the item imported by them was also referred to as Pin Type CFL in the catalogues of manufacturers. The learned Jt CDR has also heavily relied on the findings recorded by this Tribunal in para 6 of its remand order. He has laid emphasis on the following excerpt from para 6:
In particular, in our view, an incomplete, unfinished, unassembled or disassembled CFL satisfying the strict criteria laid down in GIR 2 (a) will get classified as CFL under Chapter 85 and would, therefore, attract anti-dumping duty. If GIR 2 (a) is held to be not applicable for anti-dumping duty purpose, then it would be very easy to circumvent the duty by merely removing a small insignificant part of a CFL or importing the same separately and claiming that complete CFL has not been imported. We are of the view that such interpretation that would allow and encourage circumvention and defeat a WTO compatible contingency trade protection measure is not warranted. Moreover, the GIR is an integral part of the same Customs Tariff Act, 1985 under which (Section 9A) anti-dumping duty is also levied and therefore, there is no reason to doubt its applicability specially when the product coverage under the notification is with specific reference to Chapter 85 of the Customs Tariff. Accordingly, the learned Jt CDR has urged that Interpretative Rule 2 (a) be pressed into service in this case to hold that the item imported by the appellant is a complete CFL. He has so argued by way of an alternative plea as he would still like to stick to his earlier position that the imported item is a finished CFL without choke as it could be readily used by a consumer without the aid of any other component or accessory.
10. The learned Jt CDR has also claimed support from an admission contained in the statement dated 31.7.2003 of Shri K.G. Chotrani, the proprietor. In answer to one of the queries, Mr Chotrani stated thus: It may come under pin base compact fluorescent lamp as well as lamp for emergency light which is electronic tube also. It is pointed out that an averment to the same effect was also made by the assessee in their written submissions before the adjudicating authority in the de novo proceedings. Therefore, according to the learned Jt CDR, the appellant is precluded from contending that they did not import CFL without choke and that they imported only a component/part of CFL.
11. It is further pointed out that the appellant deliberately misclassified the goods under SH 8539 29 90 and misdeclared it as electronic 9W/11W PL Tube. According to the learned Jt CDR, they indulged in misdeclaration of the goods with intent to evade payment of Anti-Dumping Duty as they were, obviously, aware of Notification No. 138/02-Cus which sought to levy Anti-Dumping Duty on CFLs (including CFLs without choke) originating in, or exported from, Peoples Republic of China, and imported into India. Therefore, the confiscation of the goods ordered by the adjudicating authority, the fine determined by it for payment in lieu of such confiscation and the penalty imposed by it are all liable to be sustained.
12. The learned Jt CDR also invites our attention to a crucial entry contained in the Bill of Entry filed by the appellant, which is RSP ITEM mentioned against the description of the goods. Going by this entry contained in the Bill of Entry, the learned Jt CDR submits that the appellant themselves considered the imported item to be a finished product readily usable by a retail consumer. This, according to the learned Jt CDR, would also reveal the oblique intent of the importer, who misdeclared the goods as electronic PL Tube instead of CFL without choke.
13. The learned Jt CDR has also referred to two test reports concerning the subject goods report of M/s Indo-Asian Fusegear Ltd, Noida and report of Electronics Regional Test Laboratory (West), Ministry of Communication and Information Technology, Mumbai. It is submitted that the first test report was obtained from the domestic industry at whose instance the anti-dumping investigations were launched. It is submitted that the Electronic Regional Test Laboratory, which tested the second sample, is a Governmental agency competent to test electronic goods like CFLs. It is submitted that both the test reports held the samples to be CFLs. It is submitted that, in the second round of adjudication, the assessee chose not to assail the above test reports.
14. The learned Jt CDR has also referred to the Boards Circular F. No. 528/53/2007-Cus (TU) dated 25.10.2007, wherein it was clarified that Anti-Dumping Duty imposed vide Notification No. 138/2002-Cus did not apply to parts/components of CFL. DGADs clarification was mentioned in para 3 of the Boards Circular, which reads as follows:
3. The Directorate General of Anti Dumping and Allied Duties (DGAD) have clarified that anti-dumping duties were not recommended on parts/components of CFL. It has been stated by them that the anti-dumping in the above notification was recommended only in respect of 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. Claiming support from the above clarification of the DGAD/CBEC, the learned Jt CDR submits that Anti-Dumping Duty was leviable in terms of the above Notification on complete, ready to use CFLs wherein choke is external. It is submitted that the item imported by the appellant was CFL without choke and that the choke/ballast required for the operation of the CFL would be inbuilt in GLS, i.e., external to the CFL.
15. In his rejoinder, the learned consultant for the appellant has first adverted to the Circular relied on by the learned Jt CDR. It is submitted that the Circular was based on Office Memo dated 1.5.2006 of the DGAD. The learned consultant now refers to the Tribunals order in Anchor Daewoo Industries Ltd vs Commissioner of Customs, Kandla [2007 (214) ELT 230 (Tri-Ahmd), wherein the said Office Memo of DGAD was considered. The learned consultant has invited our attention to the following clarification of the DGAD:-
(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.
The submission is that the item imported by the appellant was not a complete CFL without lighting and electronic parts which were required to make it an integrated CFL. Without such essential requirements, the imported item could not have been said to be ready to use. In this manner, the learned consultant has claimed support from the decision in Anchor Daewoo Industries Ltd vs Commissioner of Customs, Kandla (supra). Yet another order placed on record by the learned consultant is a stay order passed by this Bench, which, having no precedent value, is not taken up for consideration.
16. The learned consultant has also made certain submissions which fly in the face of the findings recorded in para 6 of the Tribunals remand order. These submissions pertain to classification of the imported goods and the reliability of Interpretative Rule 2 (a) in the classification. As rightly pointed out by the learned Jt CDR, the remand order was not challenged by the assessee and hence the findings contained therein are binding on them.
17. After giving careful consideration to the submissions, we are constrained to reject the plea that the item imported by the appellant is merely a component or part of CFL. We have seen a sample of the goods. It consists of a U shaped glass tube milky in appearance and fitted to a metallic base (vide Figure I), which, in turn, is fitted to a plastic base with two metallic leads protruding from the above assembly on either sides. It is not in dispute that the plastic base of the item can be inserted into a socket/holder in General Lighting System (GLS) or in the casing of an emergency lamp. If the lamp gets fused due to prolonged use or otherwise becomes useless due to damage, it can be replaced with a new one. It is not in dispute that the choke/ballast, which is required for operating the lamp, is inbuilt in the GLS/casing of emergency lamp. Therefore, what is referred to as CFL in common parlance is the item which is bought by the consumer from the market and inserts in the socket/holder of the GLS/casing of emergency lamp etc. Obviously, the item under consideration is a CFL without choke.
18. The above fact would become distinct to a prudent man who has the benefit of having an exploded view of the so-called integrated CFL referred to by the learned consultant, a sample of which was also shown to us (vide Figure II). In the exploded view of the sample shown to us, the U shaped glass tube is not in a condition fitted to metallic base coupled with plastic base as in Figure I. On the contrary, the glass tube is seen just as a glass tube; the circular plastic base is seen as a separate component; the plastic cup together with cap at its bottom is also seen as a separate component; the choke is seen hidden within the plastic cup. This is the exploded view of the so-called integrated CFL. If the argument of the learned consultant is accepted, the item depicted in Figure I should be identical to the glass tube found in Figure II when exploded, but it is actually not. It is nobodys case that the glass tube, when separated from the integrated CFL, could be used as a CFL without choke.
19. In our considered view, the simple test for deciding whether the item imported by the appellant is a CFL without choke is to ascertain whether it is readily usable as such by a retail consumer as a lamp by just inserting in the socket/holder of his GLS. [In this connection, it may be noted that the casing of an emergency lamp, which has an inbuilt choke and can hold a CFL without choke, is analogous to GLS. The casing of a table lamp, which has an inbuilt choke and can hold a CFL without choke, is just an extension of the GLS to which it is plugged.] The item under consideration is so usable and hence it squarely answers the description CFL without choke given in the text of Notification No. 138/02-Cus. As a matter of fact, the appellant themselves declared it as RSP item thereby acknowledging that it was usable as such by the retail consumer. The operative part of the Notification (shorn of portions not necessary for our purpose) reads as follows:-
AND WHEREAS the Designated Authority, vide its final findings, published in the Gazette of India, Extraordinary, Part I, section 1, dated the 14th November, 2002 has come to the conclusion that-
(a) CFL originating in or exported from Peoples Republic of China and Hong Kong have been exported to India below normal value, resulting in dumping;
(b) the Indian industry has suffered material injury from exports of subject goods from Peoples Republic of China and Hong Kong;
(c) the injury has been caused cumulatively by the dumped imports from Peoples Republic of China and Hong Kong;
(d) in case of exports of CFL with choke by M/s Philips & Yaming, Peoples Republic of China, causal link could not be established, as the landed value of such exports was more than the non-injurious price, and has proposed to impose definitive anti-dumping duty, on all imports of CFL, except the exports of CFL, both with and without choke, by M/s Philips & Yaming, Peoples Republic of China, originating in, or exported from, Peoples Republic of China and Hong Kong;
Now, therefore, in exercise of the powers conferred by sub-section (1) and (5) of Section 9A of the said Customs Tariff Act, read with rule 18 and rule 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 above findings of the designated authority, hereby imposes on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the said Customs Tariff Act, originating in or exported from the country specified in column (2) of the Table annexed hereto, when exported by exporter mentioned against the corresponding entry in column (3) of the said Table, and imported into India, an anti-dumping duty at the rate which is equivalent to the difference between the amount mentioned in corresponding entries in column (4) or column (5) of the said Table, and the landed value of the imports per unit in US$. It is clear from the Notification that the levy of ADD in this case is based on the final findings of the Designated Authority (DA), notified on 14.11.2002. Here is an excerpt from the DAs final findings:-
PRODUCT UNDER INVESTIGATION:
The product involved in the petition is Compact Fluorescent Lamp (CFL) originating in or exported from China PR and Hong Kong. The product is classified under Customs Tariff Heading 85.39.31 under HS Classification and 85.39.31.00 under Indian Customs Tariff Classification. The classification is, however, indicative only and in no way binding on the present investigation. The product covered in this investigation is Compact Fluorescent Discharge Lamps (CFL) with one or more glass tubes and which have all lighting elements, all electronic components and cap integrated in the lamp foot. Compact Fluorescent lamps without choke or ballast are also included. Obviously, CFLs without choke were also covered by the DAs final findings and, for that matter, covered by Notification No.138/2002.
20. As rightly submitted by the learned Jt CDR, neither the ruling of the Authority for Advance Ruling nor the judgment of the Honble High Court would be of any aid to the appellant. The ruling of AAR, rendered in the case of another importer cannot be applicable to the goods imported by the appellant, a legal position which is clear from Section 28J of the Customs Act. As regards the judgment of the Honble High Court, we note that the items referred to in the text of the question of law framed by the Honble High Court were pie tubes of different lengths sealed to a plastic base (metal base in the case of Single Pie) with two leads from the assembly. The Honble High Courts judgment does not discuss the operational features of the goods, nor does it advert to the question whether the items are usable by retail consumers or could be used only after assemblage with other parts/components. Moreover, the Honble High Court answered the above question by relying on the ruling of the Authority for Advance Ruling without considering the provisions of Section 28J of the Customs Act. The Honble High Court held that the item imported in that case was only a substantive part of CFL and hence not subject to Anti-Dumping Duty.
21. The substantive issue arising in the instant case has to be examined in the facts of this case. We have had the advantage of the facts presented before us by the appellant, as also the samples produced by them. We have also had the benefit of the clarifications issued by the DGAD and CBEC which are to the effect that complete, ready to use CFL, wherein choke is external is also within the coverage of Notification No. 138/02-Cus for the purpose of levy of Anti-Dumping Duty. It is not difficult to observe that the choke which is inbuilt in the GLS is external to the CFL. The decision rendered by the Honble High Court without considering such clarifications or the provisions of Section 28J of the Customs Act, or even the form in which the item in question is used by the ultimate consumer cannot, in our view, be of any aid to the appellant. Therefore, with great respect, we hold that the case in hand has to be dealt with on its own factual matrix.
22. In the case of Anchor Daewoo Industries Ltd vs Commissioner of Customs, Kandla (supra) cited by the learned consultant, we find, the goods in question was distinguished from the goods which formed the subject-matter of the remand order passed by this Bench in the case of Roma International [2004 (174) ELT 83]. It was found that the goods imported by Roma International were totally different and distinct from the goods imported by M/s Anchor Daewoo Industries Ltd. This seems to buttress a point which we have already stated, which is that each case requires to be decided on its own facts.
23. The statement given by the proprietor under Section 108 of the Customs Act and the written submissions made before the adjudicating authority in the second round of adjudication of the case are both in favour of the Revenue. On both the occasions, the assessee admitted that the goods could be referred to as Pin Tube/Base CFLs as per catalogues of manufacturers.
24. In the result, it is held that the goods imported by the appellant, being CFLs without choke, classifiable under SH 8539 31 10 of the First Schedule to the Customs Tariff Act, would attract Anti-Dumping Duty in terms of Notification No. 138/02-Cus and, therefore, the order passed by the learned Commissioner in the second round of adjudication is liable to be upheld. Though misclassification of goods may not be a ground for confiscation, misdeclaration of description of goods is one inasmuch as this misdeclaration of the goods as PL Tubes apparently aimed at evasion of anti-dumping duty. Therefore, the confiscation ordered by the adjudicating authority is also liable to be sustained. The fine of Rs 1,00,000/- was imposed in lieu of confiscation of the goods valued at Rs 2,66,831/-. We do not think that the quantum of fine determined by the Commissioner is fair and reasonable. Considering the value of the goods, we reduce the quantum of fine to Rs 50,000/- (Rupees Fifty Thousand only). Proportionately, the quantum of penalty will stand reduced to Rs 20,000/- (Rupees Twenty thousand only). With these modifications, the impugned order is sustained.
25. The appeal is disposed of in the above terms. The miscellaneous application also stands disposed of.
(Dictated in Court) (Sahab Singh) Member (Technical) (P.G. Chacko) Member (Judicial) tvu 24