Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import), ... vs M/S. Asian Pre Lam Industries Pvt. Ltd on 28 January, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/87898/2014-Mum in C/CO/91125/2014-Mum (Arising out of Order-in-Appeal No. 1357(GR.IIH-K)(IMP)/2014 (JNCH)/IMP-1300 dt.28.3.2014 passed by the Commissioner of Customs (Appeals),Mumbai-II ) For approval and signature: Honble Mr. Anil Choudhary, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) ============================================================
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?
=============================================================
Commissioner of Customs (Import), Nhava Sheva
:
Appellant
VS
M/s. Asian Pre Lam Industries Pvt. Ltd.
:
Respondent
Appearance
Shri A.K. Singh, Additional Commissioner (A.R.) for Appellant
Shri S.P. Mathew, Advocate for respondent
CORAM:
Mr. Anil Choudhary, Member (Judicial)
Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 28/01/2015
Date of decision : /2015
ORDER NO.
Per : P.S. Pruthi
This appeal is filed against the impugned order passed by Commissioner (Appeals).
2. The facts of the case are that the respondent imported goods declared as Decorative Ink Printed MDF Board-One side (Ink) of different thicknesses. The bill of entry was assessed on second check basis. The adjudicating authority decided that the goods, even though inked on one side, are nothing but plain MDF Board of thickness more than 6mm and originating from Thailand, and therefore leviable to Anti Dumping Duty under serial No.4 of Notification No. 116/2009-Cus dt. 8.10.2009. The adjudicating authority relied on the findings of the DG Anti dumping (DGAD) vide F. No. 14/12/2007-DGAD dt. 2.2.2009 and came to the conclusion that since the imported boards are not laminated they will be covered under the term Plain Medium Density Fibre Board of thickness of 6mm and above, described in Notification No. 116/2009-Cus, for levy of anti dumping duty. The adjudicating authority confiscated the goods under Section 111(m) of the Customs Act, imposed redemption fine of Rs. 3 lakhs and penalty of Rs. 1 lakh under Section 112(a) of the Customs Act. On appeal by the respondent, the Commissioner (Appeals) held that the goods imported are Printed Medium Density Fibre Board and not Plain Medium Density Fibre Boards. According to him, the adjudicating authority had attempted to enlarge the scope of the notification No. 116/2009 by including the printed boards under the term plain Boards. According to him, additional processing has been done on the Plain Board and therefore the goods imported by the appellant are mechanically worked or surface covered. He relied on the Apex Court decision in the case of Saraswati Sugar Mills Vs. Commissioner of Central Excise, Delhi III 2011 (13) (Addl) SCR 579 to state that an exemption notification has to be strictly interpreted.
3. Heard both sides.
4. The Ld. A.R. appearing for Revenue relied on the grounds of appeal of Revenue. He contended that the goods under consideration are known as Plain MDF Board in market parlance. He referred to the meaning of the word plain and stated that plain means without a pattern; in only one colour: a plain fabric or a plain table. He relied on the case laws namely M/s. Adarsh Realty & Hotels Pvt. Ltd. Vs. Commissioner of Customs 2008-TIOL-1462-CESTAT-BANG+. In this case it was held that even if the imported goods namely porcelain tiles have a covering of artificial marble, they would still be subjected to anti dumping duty which is leviable on porcelain tiles. He also referred to the case of M/s. Royal Enterprises Vs. Commissioner of Customs, 2011-TIOL-1156-CESTAT-BANG in which it was held that when anti dumping duty is leviable on CFLs, the same would continued to be leviable on all kinds of CFL even if it is contained in lamps. He also relied on the case of Roma International Vs. Commissioner of Customs, 2004 (174) ELT 83 (Tri.-Mumbai) in which it was held that anti dumping duty would be leviable on imported CFL even if the same is imported in unfinished, unassembled or disassembled form. He also relied on this judgment to state that the anti dumping notification must not be interpreted in a way which results in its circumvention or defeats its purpose.
5. The Ld. Counsel appearing for the respondent emphasized that the scope of the notification cannot be extended to Boards other than Plain MDF Boards. He referred to the order of the original authority, who stated that from physical inspection of the sample, it appeared that the material is decorative printed MDF of which one side was ink printed and did not appear to be plain MDF. The Ld. Counsel relied on the judgment of the Supreme Court in the case of Hemraj Gordhandas Vs. H. H. Dave 1978 (2) E.L.T. J350 (S.C.) to state that there is no room for intendment in notifications.
6. We have considered the rival contentions. According to Revenue, the goods in question are covered under Sr. No. 4 of the table to Notification No. 116/2009-Cus and leviable to anti dumping duty. We note that Notification No. 116/2009-Cus was issued consequent to the findings of the designated authority i.e. DGAD who vide his Notification No. 14/12/2007-DGAD dt. 26.8.2009 recommended imposition of anti dumping duty on import of certain goods. The goods are described in Notification No. 116/2009-Cus as Plain Medium Density Fibre Board of thickness of 6mm and above. The issue in this case is whether the goods imported namely Decorative Ink Printed MDF Board imported from Thailand are to be subjected to anti dumping duty under this notification. The respondent claims that since these Boards are ink printed on one side, they cannot be called Plain MDF Board. It would be useful to refer to the finding of the DGAD on the anit-dumping investigations on imports of MDF Board into India. The preliminary finding of the DGAD dt. 2.2.2009 as brought out in Revenues appeal is stated that MDF Board is produced in two forms plain & laminated. Lamination is additional processing, which is done after production of plain board. Laminated board is beyond the scope of the product under consideration. In its final finding issued vide Notification No. 14/12/2007-DGAD dt. 26.8.2009, DGAD stated in para 6:
The product under consideration is Plain Medium Density Fibre Board also known as Plain MDF Board in Market parlance. Plain Medium Density Fibre Board, or Plain MDF Board is a composite wood product made out of wood waste fibre glued together with urea formaladehyde resin or melamine resin, heat and pressure. It is widely used for partitions, Modular Furniture, Cabinets etc. due to its smooth and uniform finish. MDF Board is produced in plain form and lamination is additional processing which is done after production of Plain MDF Board. The laminated Medium Density Fibre Board (laminated MDF Board) is beyond the scope of product under consideration. The Authority in its Preliminary findings considered the submissions received on the product under consideration and after due examination excluded the Plain Medium Density Fibre Board below 6mm thickness from the product scope and accordingly the product under consideration was Plain Medium Denisty Fibre from 6mm thickness and above and same is also considered in this investigation.
It is apparent from the findings of DGAD that only laminated and other than laminated Boards were considered for investigation. No distinction was made between Plain and Ink Printed Boards. It would appear that the words used in the notification namely Plain MDF Board only reflect to the planeness of the Board. In other words, only laminated board would be outside the purview of the anti dumping notification. Even in common parlance, if an item such as a table is called a Plain Table, it would not mean that tables which are polished or coloured would not be considered as plain table. The meaning of the word Plain has to be understood in simple terms and nothing more should be read into the word Plain. The reliance placed by the Ld. Counsel on the case of Hemraj Gordhandas (supra) does not help the respondent. In fact it supports our view because, in this case, the notification is being read in straight terms and not by extracting various meanings of the word Plain. The operation of the notification has to be judged by the words which it has employed to effectuate the legislative intent. If the view of Ld. Counsel is accepted, then even a polished Board would not be considered as a Plain Board. Clearly this reasoning is fallacious. With ink printing, a Plain Board would remain a Plain Board.
6.1. The Ld. Counsel showed us commercial invoices relating to their imports of MDF Board (said to be Plain MDF) from M/s. Robin Resources, Malaysia under Invoice No. IPW130514A dated 31.5.2013 and of Decorative ink printed MDF Boards from M/s. Advance Fibre Co. Ltd., Thailand. He also showed a commercial invoice under which the goods sold by them are described as Raw MDF and Printed MDF. From the import invoice of M/s. Robin Resources, we find that the goods are described as MDF Board. Neither the word Plain is used nor the word Printed is used in this invoice. Even the corresponding Bills of Entry do not use the word Plain in the description of goods imported. This indicates that there is no distinction in the trade between the Plain Medium Density Fibre Board and Inked Medium Density Fibre Boards. We also find, on a comparison of the invoice issued by M/s. Robin Resources and M/s. Advance Fibre Co. Ltd., that the price of the same sizes e.g. 18MM, 12MM are the same. This also leads us to conclude that there is no clear distinction between the ink printed MDF and Plain MDF in trade parlance. Even the Commercial Invoice No. M740/13-14, dt. 4th July 2013 of the respondent issued to a buyer namely Nayman Stores describe the goods as printed and raw. In another commercial invoice No. M-617/13-14 dt. 19.6.2013 issued to Ms Yashshree Enterprises, the price of Raw MDF is more than price of Printed MDF. The description raw MDF does not make it clear whether it refers to non-inked board.
6.2. Therefore, we hold that the goods imported by the respondent being non laminated are covered under Notification No. 116/2009-Cus and leviable to anti dumping duty.
7. However, we do agree that the matter could be subject to interpretation in the minds of some people, in view of the wording of the notification. The importer cannot be blamed for betraying the trust put on him by allowing self-assessment, as observed by the adjudicating authority. No case is made of deliberate intention to avoid payment of anti dumping duty. Therefore, we set aside the confiscation, consequent redemption fine and penalty under Section 112(a) of the Customs Act.
8. The appeal is allowed partially in the above terms. Cross-objection is also disposed.
(Pronounced in court on /2015)
(Anil Choudhary)
Member (Judicial)
(P. S. Pruthi)
Member (Technical)
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