Custom, Excise & Service Tax Tribunal
Del Trade International Pvt Ltd vs Commissioner Of Customs (Appeals)-New ... on 9 August, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. IV
Customs Appeal No. 52362 of 2019
(Arising out of Order-in-Appeal No. CC(A)/CUS/IMP/NCH/78/2018/D-I/267/2019-20 dated
20.06.2019 passed by the Commissioner of Customs (Appeals), New Delhi)
Del Trade International Pvt. Ltd. Appellant
Beetal House, 99
Madangir, New Delhi-110062.
VERSUS
Principal Commissioner of Customs, Respondent
Imports, New Customs House, New Delhi-110037 Appearance Shri B.L. Narasimhan & Shri Anurag Kapoor, Advocates - for the Appellant.
Shri Munshi Ram Dhania, Authorized Representative - for the Respondent CORAM :
HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) HON'BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Date of Hearing/Decision : 09/08/2023 Final Order No.51060/2023 Dr. Rachna Gupta The appellant in the present case has imported product Amoxicillin Sodium with Clavulanate Potassium through Bill of the Entry dated 01.03.2018. They claim the product as one classified under Tariff Entry No. 30032000. The department, however, objected the said classification pointing out that the product merit classification under CTH 29411030 which attracted the anti- dumping duty as per Notification No. 21/2017 dated 16.05.2017. With these observations, vide speaking order No. 03/2018-19 2 C/52362/2019 dated 09.04.2018 the change in classification of the aforementioned goods imported was ordered to one under CTH 29411030 with the levy of anti-dumping duty as per notification was also ordered. The said order was challenged by the appellant.
2. However, vide order No. 267/2019-20 dated 20th June 2019 the appeal was rejected. Being aggrieved the appellant is before this Tribunal.
3. We have heard learned counsel for the appellant and learned Departmental Representative appearing for the department.
4. Learned counsel of the appellant has mentioned that the clarification from Directorate General of Trade Remedies (DGTR) was requested by the appellant. Learned counsel has placed on record letter No. 14/05/2015-DGAD dated 22.11.2019 as received in response to said clarification. The said letter specifically clarifies that the product in Column No. 3 of the said notification No. 21/2017 is Amoxicillin also known as „Amoxcycillin‟ Trihydrate. It is impressed upon that in the light of said clarification it is not necessary any more to be adjudicated as to whether the tariff entry applicable to the product in question is CTH 30 or CTH 29. The letter of clarification has come after the order under challenge. The appeal is prayed to be disposed of in terms of the said clarification.
5. Learned Departmental Representative has also placed on record a communication dated 17th July 2023 in compliance of the directions given vide the order of earlier date of hearing acknowledging the said letter dated 22.11.2019. Thus has prayed of disposal of appeal accordingly.
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6. In view of these submissions from both sides and the apparent acknowledgement of the department to the clarification dated 22.11.2019 with respect to the product in question, we need to known as to whether in light of said admitted document, the product imported by appellant i.e. Amoxicillin sodium with Clavulante Potassium is liable for anti-dumping duty in terms of final findings dated 3rd April, 2017. We observe that admittedly letter is the response to the clarification sought by the appellant from DGTR. From the said letter it is clear that while clarifying regarding anti-dumping duty on import of „Amoxicillin Trihydrate from China PR in the light of final findings dated 3rd April, 2017 recommending anti-dumping duty on the import of „Amoxicillin Trihydrate‟ from China PR in para 5, 6 & 7 thereof it is mentioned as follows :
"5. Del Trade has represented that they are facing difficulties in import of the aforesaid product as the Customs Department is demanding anti-dumping duty on "Amoxicillin Sodium with Clavulanate Potassium (Blend Sterile) (5:1)" in terms of Customs Notification No. 21/2017.
6. Del Trade has represented to us that „Amoxicillin Sodium with Clavulanate Potassium (Blend Sterile) (5:1)" is a mixture of two different salts i.e. „Amoxicillin Sodium‟ (which is a derivative of Amoxicillin) and „Potassium Clavulanate‟ and therefore, the imported product is not covered under the PUC, viz. „Amoxicillin Trihydrate‟.
7. The matter has been examined and this office is of the view that product under consideration in this final finding is "Amoxycillin", also known as Amoxycillin Trihydrate, and anti- dumping duty has been imposed on this product as indicated in column no. 3 of the Duty table. The product i.e. "Amoxicillin Sodium with Clavulanate Potassium (Blend Sterile) (5:1)" is not covered under the scope of product under consideration."
7. In the light of said clarification, hold that the product in question is not covered under the notification vide which the anti- dumping duty was imposed upon another product called „Amoxicilin Trihydrate‟.
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8. Though, the impugned clarification was not available to the adjudicating authority below but in the light of said clarification duly conceded by the department, we hereby hold that anti-dumping duty as has been levied on Amoxicillin Sodium with Clavulanate Potassium, the product imported by the appellant is not sustainable. For this reason, the order under challenge is set aside and consequent thereto, the appeal stands allowed.
(Dictated & pronounced in open Court) (Dr. Rachna Gupta) Member (Judicial) (Hemambika R. Priya) Member (Technical) RM