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Customs - Case Laws
Showing 221 to 240 of 1606 Records
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2023 (11) TMI 727
Validity of Show Cause Notice (SCN) = Jurisdiction of Joint Commissioner of Customs (Port) to issue SCN u/s 124 of the Customs Act, 1962 - Item imported is free or not - HELD THAT:- The petitioner should have responded to the aforesaid show cause notice by giving reply and make out a case before the adjudicating authority. At this stage, no relief granted to the petitioner in this writ petition except extending the time to give reply to the aforesaid impugned show cause notice for a period of two weeks from date and directing the respondent adjudicating authority concerned to consider and dispose of such reply to be filed by the petitioner on the issue of the jurisdiction to issue impugned show cause notice, on the basis of notification dated 15th July, 2020 being Annexure P-2 to the writ petition, by passing a reasoned and speaking order after giving an opportunity of hearing to the petitioner or his authorized representatives within four weeks from the date of receipt of such reply to the impugned show cause notice and till such final order is passed on the issue of preliminary jurisdiction of the adjudicating authority there will be no further proceeding and any further proceeding in the impugned proceeding will depend upon the final order to be passed on the reply to such show cause notice.
At the time of hearing, petitioner will be entitled to raise all the points with regard to the impugned show cause notice - petition disposed off.
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2023 (11) TMI 689
Valuation of imported goods - Chips of Sodium Isethionate /Chips of Sodium Isethionate HEBE - appellant related to the overseas suppliers in terms of Rule 2(2) of the Customs Valuation (Determination of Price of Import Goods) Rules 1988 or not - HELD THAT:- There are no reason to interfere with the judgment and order impugned in these appeals.
Appeal dismissed.
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2023 (11) TMI 627
Constitution of the Committee consisting of the Secretary (Revenue), the Commissioner of Customs and the Chairman and Managing Director of the respondent-Air India Limited - HELD THAT:- A report of the Committee signed by all the members on 3rd June, 2021 has been placed on record.
The learned counsel appearing for the parties agree that these appeals should be disposed of in terms of what is recorded in the Minutes of the Meeting dated 3rd June, 2021.
The appeals are disposed of by directing the parties to abide by what is recorded in the Minutes of the Meeting dated 3rd June, 2021 of the Committee constituted by this Court in terms of the order dated 15th October, 2020.
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2023 (11) TMI 626
Recovery of dues - waterfall mechanism - HELD THAT:- Appeal disposed off with the clarification that the dues of the Central Board of Indirect Taxes & Customs, Department of Revenue will be paid as per the waterfall stipulated under Section 53 of the Insolvency and Bankruptcy Code, 2016.
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2023 (11) TMI 625
Control of Air pollution in and around capital - crop burning - notification banning use of Pet Coke as fuel which the Paper Manufacturing Association of India seeks to use - HELD THAT:- The Commission is called upon to submit urgently a report as to the steps being taken for control of air pollution in and around the Capital.
List for this limited purpose on 31.10.2023.
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2023 (11) TMI 624
Imposing antidumping duty on Nylon Filament yarn - Legality of the impugned notifications dated 13 January, 2012 and 19 January, 2017 issued by the Government of India in exercise of the provisions of Section 9A(5) of the Customs Tariff Act, 1975 - HELD THAT:- The Division Bench of this Court in Gima Manufacturing Pvt. Ltd. & Anr. [2017 (8) TMI 630 - BOMBAY HIGH COURT], wherein referring to the decision of the Supreme Court in Union of India & Anr. vs. M/s. Kumho Petrochemicals Company Ltd. [2017 (6) TMI 526 - SUPREME COURT] has held that wo things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposing anti-dumping duty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above, However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending a non-existing Notification does not arise at all. As a sequitur, amendment was not to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed.
The law as laid down by the Supreme Court under Article 141 of the Constitution of India is the law of land. Once the principle of law has been laid down by the Supreme Court, it is binding on all the Courts in the country, which would also include this Court and the Tribunal. For such reason, the petitioner is not agreed with, when he submits that such a position in law is not likely to be considered in the proceedings which are pending before the CESTAT.
In the present case the CESTAT is already seized of the matter. There are several grounds on facts and law which are raised - it is required to observe that the petitioner is not precluded from urging all contentions as raised in this petition before the Tribunal including to assert its contentions that by virtue of the principles of law as laid down by the Supreme Court, if applicable in the facts of the present case, the petitioner would become entitled to refund of duty.
Petition disposed off.
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2023 (11) TMI 623
Valuation of imported goods - enhancement of value based on NIDB data - it is submitted by appellant that appellant's import is under a contract and the contract was also not considered by the Adjudicating Authority - Violation of principles of natural justice - HELD THAT:- The entire basis for enhancement of the value is one NIDB Data. However, the said NIDB Data was not provided to the appellant during the Adjudication process, therefore the appellant did not get opportunity to defend their case countering the NIDB Data. It is admitted fact that the NIDB Data was enclosed as Annexure A to order-in-original and the same was not provided before passing the order to the appellant. Moreover, the appellant vehemently argued that the supply is under a contract. He also referred to the contract made with the supplier of imported goods. It is observed that the said contract was also not considered while passing the adjudication order.
There is grave violation of principles of natural justice in adjudication process and said faulty adjudication was upheld by the Commissioner (Appeals). Therefore, in the interest of principles of natural justice and fair play in the adjudication, the matter needs to be remitted back to the Adjudicating Authority.
Appeal allowed by way of remand.
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2023 (11) TMI 622
Levy of penalty u/s 114 (i) of the Customs Act, 1962 on Merchant Exporter - smuggling of Red Sanders - mis-declaration of exported goods viz. food articles such as wafers, cumins seeds, far far, roasted matti, mamra etc. stuffed in container, which after sailing having recalled by the officers of DRI, contained 387 logs of Red Sanders - prohibited goods or not - HELD THAT:- It is a matter of record that One-time bottle seals of the central excise were affixed after stuffing of container at the ware house/factory of the appellant which has been found untampered upon examination and recovery of wooden logs prima facie appearing to be red sanders. On this backdrop, an apparent case of mis-declaration of exported goods by the appellant is appearing on record. In this regard, it is noticed that jurisdictional central excise officers namely Shri Devendra Singh – Inspector and Smt. DaminiLakhia have signed examination report of the goods stuffed in which para 13 states net weight of the stuffed container as 16610 Kgs and gross weight 16820 kgs; the report also states Bottle seal bearing No. TAS278658 and central excise seal bearing No. 0031757; the officer of Customs namely Chavda A. R. has signed the shipping bills and permitted exports after verification of the shipping bills which also states the aforesaid details. The above-named officers of department were responsible for supervising the stuffing of goods and affixing the seal and verification of the cargo as per the shipping bill, however, they have not been made party to show cause notice nor they have been examined by the adjudicating authority in terms of section 138B of the Act.
Similar observation of tempering of seal and substitution of cargo enroute are noticed in the case of NILESH KATIRA AND M/S. MARATHON CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, NAGPUR [2022 (3) TMI 238 - CESTAT MUMBAI] and in the case of MAHESHWARI ROCKS (I) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2009 (10) TMI 803 - CESTAT CHENNAI]. It is observed that miscreants looking for bonafide exporters for booking a container to load the red sanders from a regular exporter of low value food items to ensure smooth clearance is not unknown.
The documentary evidences viz. stuffing of cargo in form of Annexure/examination report verified and signed by the central excise officers and verification of the shipping bill by the officer of Custom would prevail over the aforesaid oral statements. Consequently, no case of mis-declaration can be said to have been established on the part of appellant. Red Sanders have been found from the same container bearing no. GATU 8007720 and seal bearing no. TAS278658 and Excise Seal No. 0031757 found to be intact, is evidence of occurrence of illegal attempt to export red sanders, however, person who carried out the said act is not identified; particularly, in view of fact that penalty has also been imposed on person called Shailesh from Chennai who is stamped as kingpin in export of red sanders, however, investigation could not trace him.
It is also observed that no evidence put forth as regards antecedents of the exporter of irregular exports in the past, nor there is any evidence of appellant’s role in procurement of red sanders; as such there is no evidence of appellant’s connection with such activities - Since the role of the appellant in the illegal attempt to export red sanders is not established with cogent evidence, penalty upon appellant, imposed under section 114(i), is liable to be set aside.
Penalty set aside - appeal allowed.
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2023 (11) TMI 621
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - under-valuation of goods in import of furniture, lighting fixtures, wood treatment chemicals, resins, varnishes, lacquers etc., by two persons through mis-use of various Import-Export Codes (IECs) - taking on lease/rent from the IEC holders illegally for the purpose of duty evasion - violation of Regulations 11(a), 11(d), 11(e), 11(m) and 11(n) of CBLR, 2013 - HELD THAT:- The appellants CB had declared the description of the imported goods and value in the various B/Es for aforesaid imports as given in the invoices supplied by the respective importers. Further, the appellants were not aware of the under valuation of the imported goods as there was no evidence to the claim of the department that the appellants knew about undervaluation and further all incriminating documents were recovered only from the two persons namely S/Shri Purav Mehta and Pratik Mehta. Even at the time of clearance of goods for various importers in the past, the Customs assessing group and the Commissionerate did not find out any discrepancy in valuation or any misdeclaration.
The action taken under CBLR, 2013 against the appellants CB is a follow up/ further action taken consequent to the customs offence case made out by DRI, MZU, and thus the present proceedings are only for the violations under the specific sub-regulations under CBLR, 2013. It is not the case of the Revenue that the description of the imported goods or classification of such goods under customs tariff was mis-declared in order to undervalue these imported goods. Further, any allegation of mis-declaration of imported goods in terms of its ‘description’ or ‘value’ could only be established, if the declaration in the Bill of entry has been different from the commercial invoice or other supporting documents.
Violation of Regulation 11(d) ibid - HELD THAT:- There is definitely a mention that the parallel invoices which are incriminating in nature for subject goods were found out during the search proceedings conducted at the premises of S/Shri Purav Mehta and Pratik Mehta. However, at the same time it is also on record that neither the customs authority at the time of import not the appellants were aware of such under-valuation - the conclusion arrived by the Principal Commissioner of Customs (General) on this valuation issue in the impugned order is not supported by any evidence or factual detail, to fasten the liability for such under valuation on the part of the appellants CB and thus the impugned order stating that the appellants have violated Regulation 11(d) ibid is also not sustainable.
Violation of Regulation 11(e) ibid - HELD THAT:- In the absence of any specific evidential document or factual record it cannot be stated that the information on under valuation have been withheld by the appellants, and more specifically under this issue of under valuation was brought on record only when the search operation of DRI, MZU was conducted at the premises of S/Shri Purav Mehta and Pratik Mehta resulting in recovery of parallel invoices and telegraphic transfer of foreign remittances. Thus, it is not feasible to sustain such a charge on the appellants that they did not exercise due diligence to impart correct information to their clients and thus the conclusion arrived at by the Principal Commissioner of Customs (General) is without any basis of documents or facts, in the impugned order with respect to Regulation 11(e) ibid, is not sustainable.
Violation of Regulation 11(m) ibid - HELD THAT:- From the plain reading of the requirements under Regulation 11(m) ibid, it is clear that there should be some grounds of inefficiency or unavoidable delay in clearance of the imported goods - neither, is there is any such claim of undue delay nor any demonstration of inefficiency in clearance of goods by the appellants. Thus, there are no merits on the grounds and the conclusion arrived on this point by the Principal Commissioner of Customs (General) in the impugned order. Thus, the conclusion that the appellants have violated Regulation 11(m) ibid is not sustainable.
Violation of Regulation 11(n) ibid - HELD THAT:- In the present case, the appellants CB had obtained the KYC documents and submitted the same to the Customs Department. Thus, there are no legal basis for upholding of the alleged violation of Regulation 11(n) ibid by the appellants in the impugned order on the above issue.
Violation of of regulation 11(a) of CBLR, 2013 - HELD THAT:- The appellants could have been proactive in fulfilling their obligation as Customs Broker for exercising due diligence, particularly when the import documents were obtained from the importers through an intermediary in ensuring that all documents relating to imports are genuine, the KYC documents given by the importer are also genuine and that these are not fake or fabricated. Thus, to this extent we find that the appellants CB are found to have not complied with the requirement of sub-regulation 11(a) and thus forfeiture of security deposit for failure in not being proactive for fulfilling of regulation 11(a) of CBLR, 2013 alone, is appropriate and justifiable.
There are no merits in the impugned order passed by the learned Principal Commissioner of Customs (General), Mumbai in revoking the license of the appellants; and for forfeiture of security deposit, inasmuch as there is no violation of regulations 11(d), 11(e), 11(m) and 11(n) ibid, and the findings in the impugned order is contrary to the facts on record. However, in view of the failure of the appellants to have acted in a proactive manner in fulfillment of the obligation under sub-regulation 11(a) ibid, particularly when they have received the documents from importer through intermediary, it is justifiable to forfeit the entire security deposit given by the appellants, which would be reasonable - appeal allowed in part.
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2023 (11) TMI 619
Recovery of duty from the Surety - Demand of duty from the appellant to the extent the main noticee fails to pay the duty - Levy of penalty u/s 117 of the Customs Act on director of the company - recovery of dues of the company can be proposed against the present appellant being whole time director of the company as he executed the bond on behalf of the company, or not - HELD THAT:- It is not disputed that Laser had imported the goods as a 100% EOU and obtained a Customs bonded warehouse licence for its premises. It is also not in dispute that the duties would have been payable but for the exemption available to the 100% EOUs. It is also not in dispute that the exemption is available to some conditions including the main condition that the importer manufactures and exports goods and thereby achieves the Net Foreign Exchange (NFE) requirement and that Laser failed to achieve it and therefore, requested to de-bond the goods. It is undisputed that in such a case, duties have to be paid as appropriate. Therefore, the duties were recoverable from Laser.
It is undisputed that at the time of import of goods, the exemption was allowed subject to execution of bonds on which the appellant signed as the surety. Needless to say, if the main person fails to pay the amounts (duties in this case) due, they can be recovered from surety. The impugned order confirmed the demands only against the importer and the duties were ordered to be recovered from the appellant only to the extent that they could not be recovered from Laser - thus, insofar as the recovery of dues from the appellant is concerned, the order is legally correct and is also fair and balanced and it calls for no interference.
Penalty of Rs. 1,00,000/- imposed on the appellant under section 117 of the Customs Act - HELD THAT:- Considering the facts recorded in the impugned order, (which are not disputed) that the appellant was the whole time director of Laser and was responsible for its operations and Laser violated section 58 of the Act and the appellant mislead the department, there are no reason to interfere with the penalty imposed on the appellant under section 117.
Appeal dismissed.
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2023 (11) TMI 579
Monetary amount involved in the appeal - low tax effect - it is submitted that in view of the circular dated 02.11.2023 issued by Ministry of Finance, Department of Revenue Central Board of Indirect Taxes & Customs, the monetary limit for matters before the Supreme Court has been raised to Rs.2 Crores even in the cases pertaining to indirect taxes and customs.
HELD THAT:- The appeal stands dismissed on account of the reason owing to law tax effect.
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2023 (11) TMI 578
Classification of export goods - Ilmenite upgraded (processed) - to be classified under Tariff Item 2614 00 20 (as beneficiated/processed Ilmenite) or under Customs Tariff Act 2614 00 10 (as unprocessed Ilmenite)? - it was held by CESTAT Chennai that the goods which are upgraded/processed Ilmenite are classifiable under 2614 00 20.
HELD THAT:- There are no merit in this appeal - The Civil Appeal stands dismissed.
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2023 (11) TMI 577
Permission for clearance of consignment for re-export on the entire costs which will be borne by the Petitioner - direction to issue Detention and Demurrage Waiver Certificate in respect of consignment covered.
The Petitioner submitted that it has made a representation on 4th September 2023 to Respondent Nos.2 and 3 for considering the request to re-export of the goods which were wrongly sent to India. The said request is pending as of today in spite of various reminders by the Petitioner. The Petitioner further submitted that the present petition can also be treated as representation in addition to the letter dated 4th September 2023 and suitable directions be given to the Respondents to decide the same.
HELD THAT:- The Respondents are represented here and they have no objection to the prayer made by the Petitioner.
Present petition and letter dated 4th September 2023 be treated as representation by the Petitioner to Respondent No.3 on the issues as raised by the Petitioner - Speaking order to be passed after hearing the petitioner.
Petition disposed off.
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2023 (11) TMI 576
Legality of Auction Notices - sale of goods on an alleged High Sea transaction to Respondent No.7 contrary to the terms and conditions of contract between the Petitioner and Respondent No.5.
The Petitioner contends that the representation dated 16th March, 2023 has not been decided by the Respondent No.3 and therefore, suitable directions be issued to Respondent No.3 to decide the same. The Petitioner has further submitted that in addition to the representation dated 16th March 2023, the present petition may also be treated as additional representation objecting to the aforesaid IGM.
HELD THAT:- All the Respondents are represented before this Court and have no objection to the aforesaid limited prayer as made by the Petitioner being granted.
Respondent No.3 would treat the present Writ Petition along with letter dated 16th March 2023 as representation of the Petitioner on the issue in question - Petition disposed off.
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2023 (11) TMI 575
Entitlement for amendment in the shipping bill - HELD THAT:- In light of this advisory, if the petitioner makes an application to the competent authority for seeking the amendment of Shipping Bills, the portals shall accept such amendment in light of the aforesaid advisory and grant the rewards that the petitioner would otherwise be eligible under the Scheme.
Petition allowed.
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2023 (11) TMI 574
Eligibility for benefit under DFIA Scheme as per Notification No. 25/2023-Cus dated 01.04.2023 - import of Extra Virgin Olive Oil
Denial of exemption on the ground that in terms of Para 4.12 of FTP (2015-20) & 2023 only input together with quantity which has been used in manufacturing the export product shall be allowed for import of DFIA - It further stated that there is no evidence to show that Extra Virgin Olive Oil is used in Export goods.
HELD THAT:- The appellant has relied upon two technical opinions of IIT, Kharagpur. The one opinion dated 23.02.2023 confirms that Olive Oil can be considered for usage in edible purpose like cooking, in salads and in the preservation of food like specific pickle items , the other opinion dated 05.09.2023 inter alia confirms that “ It may be seen from the above referred list of edible vegetable oils the consumers are free to choose the fats and oils as per easy availability and affordability for the consumption in food as well as baked products such as biscuits/cookies/crackers and savoury items. In view of the potential health benefits of different olive oils on account of its composition as the richest source of monosaturated vegetable oil alongwith its minor constituents like polyphenols and tocopherols”.
In the face of the aforesaid technical opinions and facts as recorded, it is found that the imported goods viz., Extra Virgin Olive Oil is fully covered by the Transferable DFIA’s produced by the appellant.
On a conjoint reading of Para 4.12 (i) and 4.12 (ii) and para 4.29 of the FTP(2023) as specified in Custom Notification No. 25/2023-Cus dated 01.04.2023, it reveals that it is only in respect of inputs specified in para 4.29 that the material permitted in the authorization shall be of the same quality and technical characteristics and specifications as the materials used in the resultant product are permitted for import - neither the imported goods viz., Olive oil nor Salad oil/Vegetable Oil are specified as sensitive input under Para 4.29 of FTP. Therefore as per Board Circular No. 46 of 2007 and DGFT Policy Circular No. 50 of 2008, no correlation is required to be established for technical specification, quality and characteristics of inputs used in export goods and imported goods.
The appellant is entitled to claim exemption from Basic Customs Duty under Notification No. 25/2023-Cus dated 01.04.2023 for their import of Extra Virgin Olive oil under the Transferable DFIA’s against Export of Vegetable Pickles and Biscuits. As regards the revalidation of DFIA’s in question, we direct the lower authorities to issue a certificate in terms of Para 2.20 (c ) of Hand book confirming the period of dispute , in case such a request is made by the appellant.
Appeal allowed.
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2023 (11) TMI 573
Gross Undervaluation - meaning of value and transaction value - order is challenged on the ground that provisional assessment is in itself is an evidence that Appellants had not voluntarily accepted the value @Rs 1799/- per piece - HELD THAT:- Section 14(1) is a deeming provision as it talks of ‘deemed value’ of such goods. Therefore, normally, the Assessing Officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods. This, ordinarily, is the course of action which needs to be followed by the Assessing Officer. This principle of arriving at transaction value to be the assessable value applies. That is also the effect of Rule 3(1) and Rule 4(1) of the Customs Valuation Rules. The authority is thus bound to accept price actually paid or payable for goods as the transaction value - In order to invoke such a provision it is incumbent upon the Assessing Officer to give reasons as to why the transaction value declared in the Bills of Entry was being rejected; to establish that the price is not the sole consideration; and to give the reasons supported by material on the basis of which the Assessing Officer arrives at his own assessable value.
In COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS SOUTH INDIA TELEVISION (P) LTD. [2007 (7) TMI 9 - SUPREME COURT], the Court explained as to how the value is derived from the price and under what circumstances the deemed value mentioned in Section 14(1) can be departed with and held that Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods.
It is found that the Assessing Officer was having a valid and enough evidence for rejection of the transaction value as declared by the appellant in their bill of entry by resorting to Rule 3 (4) of the Customs Valuation Rules, 2007. Since the value of identical and similar goods at the contemporary import time was also could not be ascertained, we feel that the resorting the valuation under Rule 7 of the Customs Valuation Rules by the Department is legally sustainable in the facts and circumstances of this case - it is also observed that in the present case also there is sufficient admission of the authorized representative of the appellants for the value of contemporaneous import of similar goods shown by the department.
There is no infirmity in the order-in-original under challenge - Appeal dismissed.
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2023 (11) TMI 572
Principles of natural justice - ex-parte order - Levy of Customs Duty - raw material used and contained in the excess shrinkage and waste generated in the manufacture of excisable goods in the appellant’s EOU - HELD THAT:- The impugned order was passed ex-parte.
From the observation made by the Adjudicating authority in the impugned order, it is clear that the appellant have neither availed the hearing given on various dates nor even filed the reply. It was also noted that the company was closed and all the hearing notices were returned. Now it is found that since the appellant are before us by filing the appeals and also effectively made present on the date of hearing and argued their case, through their Advocates the appellant are very much in contact. Accordingly, one opportunity can be given to the appellant to present their case before the Adjudicating authority.
The matter remanded to the Adjudicating Authority for passing a fresh order after allowing the personal hearing and for filing reply/ submission to the appellant - appeal allowed by way of remand.
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2023 (11) TMI 571
Valuation of imported goods as per PLATTS rate - variation up to 10% form PLATTS rate would be considered with the prior written approval of the jurisdictional Additional/ Joint Commissioner - HELD THAT:- The standing order No. 15/2012 dated 10.09.2012 provided for valuation of 10% from PLATTS rate in a case where the plastic products were imported form the manufacturer - the 10% variation is provided from that PLATTS rate, if the goods are imported form the manufacturer. In the present case, there is no dispute that the goods were imported form the manufacturer. The contention of the department is that the appellant have not obtained the prior approval of the jurisdictional additional/ joint commissioner.
The appellant have admittedly submitted a letter on their letterhead. Even though the said letter was signed by agent since the custom agent is authorized person of the appellant, the letter must be considered as if submitted by the appellant only. Therefore, the said letter submitted by the appellant is a proper compliance of the standing order. Even if the said letter is not considered as proper compliance the prior written approval is only a procedural requirement. If all other conditions are satisfied such as import of the goods from the manufacturer then merely because the procedure of prior written approval cannot come in the way of allowing the 10% variation from the PLATTS rate to arrive at the valuation - the standing order itself is a guideline and not an Act or Rules made under Customs Act.
The noncompliance of standing order is only a procedure lapse, for which the substantive benefit of the 10% variation cannot be denied - in the facts of this case the appellant is entitled for the 10% variation from the PLATTS rate to determine the correct value.
The impugned order set aside - appeal allowed.
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2023 (11) TMI 570
Scope of Anti Dumping duty when similar goods are not manufactured in India - Exclusion of product ‘colour coated aluminium coils’ from imposition of anti-dumping duty - modification in the consequential customs notification 6-12-2021 issued by the Central Government to exclude ‘colour coated aluminium coils’ from imposition of anti-dumping duty retrospectively w.e.f. 6-12-2021 and for refund of the excess/additional duty so collected on the import of ‘colour coated aluminium coils’ w.e.f. 6-12-2021.
HELD THAT:- Anti-dumping duty has been levied on imports of flat rolled products of aluminium originating in or exported from China PR. The appellant is a manufacturer of Aluminium Composite Panel sheets in India, and uses different types of colour coated coils as a raw material to manufacture the finish goods i.e. ACP. Thus, imposition of anti-dumping duty on colour coated coils would work to the prejudice of the appellant.
What also needs to be noticed is that in the earlier final findings dated 29-5-2009 relating to safeguard duty investigation in respect of import of aluminium flat rolled products and aluminium foil to India from China PR, which concerned Hindalco also a domestic producer, it was sought to be contended by the interested parties that aluminium colour coated coils are not manufactured by the domestic industry and, therefore, cannot be included in the ambit of product under consideration. It would be seen from the aforesaid final findings recorded by the designated authority that it was not a case set up by Hindalco that it manufactures colour coated coil - In the case of coating by fluorine carbon, the aluminium coil is subjected to fluorine carbon resin, pigment and it is after high temperature roasting and baking that the paint is solidified with dry films with super weather resistance.
The inevitable conclusion that follows from the aforesaid discussion is that Hindalco does not manufacture/produce colour coated coil as it has failed to produce any evidence before the designated authority or before the Tribunal to substantiate that it has even the capacity to manufacture/produce colour coated coil, much less produce colour coated coil in commercial volumes.
Thus, if the domestic industry does not manufacture/produce colour coated coil, this product would have to be excluded from scope of the product on which anti-dumping duty has been imposed under the customs notification dated 6-12-2021 issued by the Central Government on the basis of the final findings dated 7-9-2021 issued by the designated authority - The customs notification dated 6-12-2021 is, accordingly, modified by excluding the ‘colour coated coil’ from imposition of anti-dumping duty.
Appeal allowed.
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9911796707
