Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Customs vs Raghav Enterprises on 28 July, 2005
Equivalent citations: 2005(189)ELT461(TRI-BANG)
ORDER T.K. Jayaraman, Member (T)
1. These two appeals have been filed by the Revenue against the Orders-in-Appeal Nos. 101/2003 & 102/2003, both dated 21-10-2003 passed by the Commissioner of Customs (Appeals), Cochin. The issue involved in both the appeals is one and the same. Hence we are issuing a common order.
2. The Respondents, M/s. Raghav Enterprises filed Bills of Entry on 20-9-2002 and 11-10-2002 for clearance of 3,02,000 pieces each of CFL lamps while M/s. Orient Impex filed Bills of Entry on 15-11-2002 and 11-11-2002 for clearance of 1,52,000 pieces each of CFL lamps. The goods were classified under Chapter 8539 and assessed accordingly. Subsequently, the Government of India issued Notification No. 138/2002-Cus., dated 10-12-2002 imposing definitive anti- dumping duty on all imports of CFL from People's Republic of China and Hong Kong and as per Para 2 of the said Notification, the anti-dumping duty was to be levied with effect from the date of imposition of provisional anti-dumping duty i.e. 21-12-2001. The validity of the provisional anti-dumping duty is only for 6 months. Hence it was in force only up to 26-6-2002. When the goods were imported, there was no levy of provisional anti-dumping duty. However, in vie of the Notification No. 138/2002-Cus., dated 10-12-2002, the demand letters were issued to the Respondents on 7-2-2003 Under Section 28(1)(b) of the Customs Act, 1962. The lower Adjudicating authority confirmed the demands. Further the Respondents appealed to the Commissioner (Appeals) who set aside the order of the Original Adjudicating authority with the following grounds -
"The Supreme Court in number of decisions has held that chargeability of duty would require that when the goods enter the territory of India the goods should be chargeable to duty. In the instant case, I find that the goods were imported, no duty was chargeable. Chargeability cannot be created with retrospective effect."
The Revenue is aggrieved over the decision of the Commissioner (Appeals). According to the Revenue, the Government of India has power to levy anti-dumping duty with retrospective effect and retrospective effect will commence from the date of imposition of provisional duty.
3. Shri R.N. Viswanath, learned SDR appeared on behalf of the Revenue and Shri Rajesh Chander Kumar, learned Advocate appeared on behalf of the Respondents.
4. The learned SDR submitted that the demands have been made consequent to the issue of Notification No. 138/2002 which provides for definitive anti-dumping duty with effect from the date of imposition of provisional anti-dumping duty, i.e. with effect from 21-12-2001. He relied on the decision of the Hon'ble Supreme Court in the case of ITW Signode India Ltd. v. Collector of Central Excise [2003 (158) 403 (S.C.)] wherein it is held that Retrospective effect can be given in case of curative and validating statute. He also referred to the opinion of the Ministry of Law, according to which anti-dumping duty can be levied during the interregnum period which is after the expiry of provisional anti-dumping duty and before imposition of definitive anti-dumping duty.
5. The learned Advocate referred to the Rule 13 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, according to which the provisional duty would be in force only for a period not exceeding six months which may upon request of the exporters representing a significant percentage of the trade involved could be extended by the Central Government to 9 months. Further he referred to Rule 20(2)(a) which states as under -
"20. Commencement of duty.
(2)(a) where a provision duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the anti-dumping duty may be levied from the date of imposition of provisional duty;"
He said a harmonious reading of Rule 13 and Rule 20 would reveal that provisional anti-dumping duty would have validity only for 6 months. But on request of the exporters, it can be extended to 9 months. In the present case, there was no extension of the provisional anti-dumping duty at all. When the goods were imported, the provisional anti-dumping duty has lapsed. When the requirement of Rule 13 is not satisfied, the anti-dumping duty imposed under Rule 20 cannot be effective during the interregnum period. In other words, retrospective effect can be given only if the provisional anti-dumping duty is chargeable during the interregnum period. Hence, the Commissioner's order is legal and proper.
6. We have gone through the records of the case carefully. As rightly held by the Commissioner (Appeals) during the interregnum period, there was no charging provision for levy of provisional anti-dumping duty. To put in different words, there is no levy at all. The case would be different if the provisional anti-dumping duty has not lapsed. Even though there is a provision to extent the provisional anti-dumping duty to 9 months on the request of exporters, nothing has been done. Under these circumstances, the importers cleared the goods without payment of anti-dumping duty. In these circumstances, we find that the Notification determining final anti-dumping duty is repugnant to Rule 13 and Rule 20 of the above Rules. Hence we do not find any merit in the Revenue's appeals and the same are rejected.
(Operative portion of the order has been pronounced in the Court on completion of hearing)