Custom, Excise & Service Tax Tribunal
M/S Sunrise Enterprise vs C.C.E. Jallandhar on 28 October, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. I Appeal No. C/90/2008 - CU[LB] [Arising out of Order-In-Appeal No. 139-141/Cus/Appl/Ldh/2007 dated 31.10.2007 passed by Commissioner of Customs & Central Excise, Jalandhar] For approval and signature: Honble Justice Mr. G. Raghuram, President, Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. R. K. Singh, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s Sunrise Enterprise Appellant Vs. C.C.E. Jallandhar Respondent
Appearance:
Sh. Piyush Kumar, Advocate for the Appellants Sh. Govind Dixit (DR) for the Respondent CORAM:
Honble Justice Mr. G. Raghuram, President, Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. R. K. Singh, Member (Technical) Date of Hearing /decision: 28.10.2014 Final ORDER NO. 54698/2014 Per Archana Wadhwa (for the Bench):
As per facts on records, the appellant imported Global Star Brand Tyres, Tubes and Flaps falling under chapter 40 of the first schedule to the Customs Tariff Act, 1975 and filed 3 bills of entries, one dated 11.07.2007 and two dated 12.07.2007. The import of the said goods from peoples republic of China and Thailand were leviable to provisional Anti Dumping duty in terms of notification No. 106/06-CUs dated 09.10.2006, at the rate which was equivalent to the difference between the reference price as specified in the duty table appended to the said notification and the landed value of the imported goods.
2. As the landed value of the goods in all the 3 bills of entries was higher than the reference price specified in the notification in question, the goods were assessed to customs duty of around Rs. 4 Lakhs in each of the bills of the entries and anti dumping duty as zero in each case. The assessment was completed by the customs appraisal on 19.07.2007 and 20.07.2007. The appellant discharged the duties accordingly on 23.07.2007. The bills of entries were pre-audited in concurrent audit on 23.07.2007 and as per the appellant, were returned to their customs house agent with pre-authenticated TR-6 challans.
3. On 24.07.2007, a final notification No. 88/2003, in respect of Anti Dumping Duty on tyres, tubes, flaps etc., was issued, revising the reference price from the earlier reference price specified in the provisional notification No. 106/06. As the value of the imported goods by the appellant was less than the reference price, the Revenue recalled the bills of entries, assessed the same imposing anti dumping duties amounting to Rs. 2,37,075/-.
4. Being aggrieved with such assessment in respect of anti dumping duty, the appellant filed appeal before Commissioner (Appeals), raising number of grounds. It was mainly contended by the appellant that inasmuch as in their case, the assessment were finalized before the issuance of the final anti dumping notification of 24.07.2007, it was not permissible to the assessing officer to recall the bills of entries and to reassess the same, in terms of the new notification No. 88/07. The said plea of the appellant does not stand accepted by Commissioner (Appeals), who, by making reference to various decisions of the higher Judicial Forums, held that the final assessment has to be done by the Assistant Commissioner of Customs and merely because the appellant had deposited the duty before the final assessment, the same cannot be considered as duty collected by the Revenue, in terms of Rule 21 of the Customs Tariff (Anti Dumping Duty on Dumped Article) Rules, 1995. As such by referring to the letter of the Assistant Commissioner of Customs, Ludhiana clarifying that the bills of entries were assessed finally only on 27,28 and 29 of August, 2007, he upheld the confirmation of anti dumping duty.
Hence, the present appeal.
5. After hearing both the sides duly represented by Sh. Piyush Kumar, Advocate for the appellant and Shri Govind Dixit, DR for the respondent, we find that the entire scenario has now changed. In the Finance Act of 2009, the provisions of Section 9A of the Customs Tariff Act were amended the sub-section 8 of Section 9A, under which anti dumping duty is leviable, was substituted as under:-
For sub-section (8), the following sub-section shall be substituted and shall always be deemed to have been substituted on and from the 1st day of January, 1995, namely:-
(8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date of determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. As is seen form above sub-section 8 of section 9A was amended retrospectively and the provisions of Customs Act including relating to the date for determination of rate of duty were made applicable. In terms of section 15 of the Customs Act, 1962 the date for determination of rate of duty is the date when the goods enter for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section. As such the date of PRESENTATION of bill of entry is the relevant date for determining the rate of duty, in terms of the provisions of section 15(a) of the Customs Act, 1962. The said section has been made applicable to anti dumping duty with retrospective effect, in terms of the sub-section 8 of section 9(A), as reproduced above. This also stands explained by the Government, in the memorandum explaining the provisions in the Finance [No. 2] bill 2009, wherein while dealing with the amendments in the Customs Tariff Act, 1975 it stands observed that the provisions of section 9(A) of the Customs Tariff Act, 1975 is being amended to extend retrospectively the machinery provisions of the Customs Act, 1962 to anti dumping duties levied under this section.
6. In view of the foregoing, the date of presentation of bill of entry is relevant date for the purpose of determining the applicable rate of duty. In the present case, admittedly the bills of entry were presented prior to 24.07.2007, when the final anti dumping notification was issued. As such it has to be held that the final anti dumping notification has no applicability to the bills of entry presented prior to the said date. Inasmuch as the applicant has already been assessed to zero anti dumping duty, we are of the view that the further demand of anti dumping duty in terms of the subsequent notification is not called for. Accordingly, the impugned order is set aside and appeal is allowed with consequential relief to the appellant.
(Justice G. Raghuram)
President
(Archana Wadhwa) Member(Judicial)
(R. K. Singh)
Member(Technical)
NSB*
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