2016 (2) TMI 440 - AT - Customs

Adjudicating orders - non supply of relied upon documents- Levy of safeguard duty - import of Aluminum Fin Strip - Notification No. 71/2009 Cus - percentage of alloying elements need not be more the 1% - A personal hearing was granted for 24/01/2013 by the adjudicating authority which was attended by the appellant but a written reply was submitted to be filed by 28/1/13. It is further observed that instead of filing reply appellant vide letter dt 28/01/13 requested the adjudicating authority to provide them all the relied upon test reports. Appellant should have asked for copies of such reports immediately on receipt of the show cause notice dt 28/8/12 instead of asking it after a period of five months. Accordingly we are of the view that appellant should be put to some conditions so that they co-operate with the adjudication proceedings. It is directed that appellant should pre-deposit an amount of ₹ 8 lakh within eight weeks & report compliance directly to the adjudicating authority. - Matter remanded back.

Issues:
1. Whether goods declared by the appellant are leviable to safeguard duty under a specific notification.
2. Interpretation of the percentage of alloying elements in imported goods.
3. Delay tactics by the appellant in adjudication proceedings.
4. Non-supply of relied upon test reports to the appellant.
5. Compliance with procedural requirements by the appellant.

Analysis:

1. The appellant imported Aluminum Fin Strip of Chinese Origin and contested the imposition of safeguard duty under Notification No. 71/2009 Cus. The appellant argued that the notification, applied retrospectively from a certain date, exceeded the 200-day limit for operational effectiveness as per the Customs Tariff Act. The appellant also raised additional grounds not presented before the adjudicating authority due to ex-parte decisions on the original orders.

2. The appellant contended that the adjudicating authority misinterpreted the requirement for alloying elements in the imported goods. The appellant emphasized that the percentage of alloying elements need not exceed 1% collectively, citing specific provisions. The appellant requested access to metal testing reports conducted by the Revenue, which were not provided.

3. The Revenue representative accused the appellant of attempting to delay the adjudication process by seeking adjournments. The Revenue supported its case by highlighting the adjudicating authority's findings on the percentage of alloying elements in the imported goods.

4. After reviewing the case records, the Tribunal acknowledged the narrow scope of the issues raised. The Tribunal allowed the stay applications and decided to address the appeals. The Tribunal noted that the additional grounds raised by the appellant were not presented during the initial adjudication, leading to a remand for fresh consideration by the adjudicating authority. The Tribunal also emphasized the importance of providing the appellant with the relied upon test reports for a fair assessment.

5. The Tribunal observed the appellant's requests for multiple extensions during the adjudication process and directed the appellant to cooperate by pre-depositing a specified amount within a set timeframe. Compliance with this directive would enable the adjudicating authority to proceed with denovo consideration, ensuring adherence to principles of natural justice. The Tribunal allowed the appeals by remanding them to the Adjudicating Authority, while also disposing of the stay and miscellaneous applications.

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