Customs, Excise and Gold Tribunal - Delhi
Alaska Export vs Commissioner Of Customs on 23 January, 1998
Equivalent citations: 1998(98)ELT612(TRI-DEL)
ORDER Jyoti Balasundaram, Member (J)
1. The above application has been filed for waiver of pre-deposit of Rs. 2,55,418/- being the quantum of anti-dumping duty imposed by virtue of Notification No. 159/95-Cus., dated 14-11-1995 on Nitrite Type Synthetic Rubber (Acrylonitile-butadiene rubber) imported from Japan, and stay of recovery thereof. The appellants filed ex-bond Bill of entry on 3-11-1995 for clearance of 13,230 kgs. of Nitrite Type Synthetic Rubber Grade DN-200 against the DEEC Book; the bill of entry was finalised on 6-11-1995; the appellant's goods were warehoused and the goods were physically cleared from the warehouse on 16-11-1995. The duty has been demanded on the ground that in the case of goods cleared from a warehouse under Section 68, the date of determination for rate of duty and Tariff valuation of imported goods is the date on which the goods are actually removed from the warehouse in terms of the provisions of Section 15(1)(b) of the Customs Act, 1962, and since prior to the clearance of the goods from the warehouse, an Additional duty (Anti-dumping duty) at the rate of Rs. 19,306/- per MT was levied on the goods which were exported from Japan into India, the Antidumping duty was required to be paid.
2. Shri K.K. Anand, learned Advocate for the appellants, contends that it is the date of filing of the Bill of entry for home consumption which determines the rate of duty in clauses (a) and (b) of Section 15 of the Customs Act, 1962 and since the ex-bond bill of entry was filed on 3-11-1995, the rate of duty applicable on that date would be the determining factor and since on that date there was no imposition of anti-dumping duty on the goods in question, such duty is not payable by the importers/applicants. To support his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of DCM and Anr. v. Union of India 1995 Supp (3) SC Cases 223.
3. Opposing the contention of the learned Counsel, Shri H.K. Jain, learned SDR submits that since the goods were warehoused, the provisions of Section 15(1)(b) are applicable according to which the relevant date for determination of rate of duty and Tariff valuation of imported goods is the date on which the goods are actually removed from the warehouse. He submits that since prior to the physical clearance of the goods from the warehouse, Antidumping duty was levied vide the relevant notification, such duty is required to be paid.
4. We have carefully considered the submissions of both the sides. Section 9A(1) of the Customs Tariff Act, 1975 empowers the Central Government by Notification in the Official Gazette to impose anti-dumping duty not exceeding the margin of dumping on importation of any article exported from any country or territory to India at less than its normal value. Under clause (6) of Section 9 A, the Central Government is empowered to make Rules for the purpose of this section to provide inter alia for the manner in which the articles liable for any anti-dumping duty under this section may be identified and for the manner in which export price and the normal price and the margin of dumping in relation to such articles may be determined and for the assessment and collection of such anti-dumping duty. Under sub-clause (4) of Section 9A, the anti-dumping duty chargeable under that Section shall be in addition to any other duty imposed under the Customs Tariff Act, 1975 or any other law for the time being in force. Section 9B(2) provides that the Central Government may make rules for the purpose of the section and such rules may provide for the manner in which any investigation may be made for the purpose of the section, the factors to which regard shall be had in such investigation, and for all matters connected with such investigation. In exercise of the powers conferred by Section 9A(6) and Section 9B(2) of the Customs Tariff Act, 1975, the Central Government has framed the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. Rule 3 provides for the appointment of the designated authority for the purpose of the rules and Rule 4 prescribes that it shall be the duty of the designated authority to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article, to identify the article liable for anti-dumping duty, to submit its findings to the Central Government and to recommend the amount of anti-dumping duty etc. The designated authority had rendered a finding which was published in the Gazette dated 19-10-1995 that there is dumping in respect of Acrylonitile-butadiene rubber (NBR) falling under sub-heading 4002.59 of the First Schedule to the Customs Tariff Act, when exported from Japan into India. Subsequently, the Government issued Notification 159/95, dated 14-11-1995 in exercise of the powers conferred by Section 9A(1) of the Central Excise Tariff Act, 1975 read with Rule 21 of the (Identification, Assessment and Collection of Duty or Additional Duty on Dumped Articles), Rules imposing additional duty at the rate of Rs. 19,306/- PMT on the said goods when imported from Japan into India.
5. The Applicant before us did not challenge the order on determination or imposition of anti-dumping duty (against which an appeal lies under Section 9C of the Customs Tariff Act, 1975 to a Special Bench of the Tribunal constituted by the President of the Tribunal and consisting of the President and not less than 2 Members (including one Judicial Member and one Technical Member). The appeal has been filed under Section 129 of the Customs Act, 1962 against the decision of the statutory authority namely the Commissioner of Customs (Appeals), New Delhi holding that notification imposing Anti-dumping duty applies to the instant import. In view of the clear language of Section 15(1)(b) that in case of goods actually removed from a warehouse, the rate of duty and tariff valuation applicable to imported goods shall be the rate and valuation in force in the case of goods cleared from warehouse under Section 68 on the date on which the goods are actually removed from the warehouse, duty demand is prima facie sustainable. This position of law has been upheld by the Hon'ble Supreme Court in the case of Priyanaka Overseas Put. Ltd. reported in 1991 (51) E.L.T. 185. The decision of the Supreme Court in the case of DCM cited (supra) does not express a contrary view. In that case, the Hon'ble Apex Court has held that 'a reading of Sections 46 and 68 makes it clear that they provide as an option to importer to file a bill of entry for home consumption straightaway (in which case, he has to pay the duty determined with reference to that date) or to file a bill of entry for warehousing. In the latter case, the goods are merely warehoused. The duty will be levied at the rate and on the basis of the valuation determined in accordance with the provisions prevailing on the date of clearance from the warehouse for which purpose the importer has to file a fresh bill of entry for home consumption. In other words, it is the date of filing the bill of entry for home consumption which determines the rate of duty in clauses (a) and (b) of Section 15.
6. From the above, it appears that it is the department which has a prima facie case and not the appellants. We therefore, reject the prayer for waiver and stay and direct the appellants to deposit the entire duty amount within a period of 8 weeks from the date of receipt of this order, failing which the appeal will be liable for dismissal without further notice.
Matter to come up for reporting compliance on 18th March, 1998.
S.K. Bhatnagar, Vice President
7. I would only like to add that it is noteworthy that in the present case, there is no challenge to the applicability or otherwise of various provisions of the Customs Act.
8. We have gone through the relevant provisions of the Customs Tariff Act relating to anti-dumping duty and rules in respect thereof. We observe that prima facie, there does not appear to be any provision corresponding to Section 6 in respect of anti-dumping provisions. However, in the absence of any challenges as aforesaid and noting that prima facie the anti-dumping duty appears to be a duty in the nature of a customs duty, we are inclined, for the purpose of passing this ad interim order to take up this petition filed with reference to Section 129A of the Customs Act, 1962.
9. We also note that there is no dispute that the goods in question had been warehoused. Therefore, prima facie, warehousing provisions and the relevant provisions of Section 15 would come into play. Since it is Section 15 which prescribes the rate of duty and undisputably, it is a case relating to date for determination of rate of duty, the relevant provision is Section 15(b) which relates to goods cleared from a warehouse and prescribes the appropriate date as the date on which the goods have been actually removed from the warehouse and apparently, it is this sub-clause which is attracted ex facie.
10. Therefore, in view of the reasons already recorded by my learned Colleague, the prayer for waiver of pre-deposit is rejected. However, the appellants are given time to deposit the duty within eight weeks, as already announced in the open Court.