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2019 (2) TMI 1370 - AT - CustomsJurisdiction - Application for transfer of this appeal to the ADD Bench - whether the issue falls within the jurisdiction of this Tribunal? - Held that:- The Department has not been able to say whether the Miscellaneous Application was accepted at Principal Bench, New Delhi or whether numbered. Interestingly, this appeal is filed by the Department before this Tribunal. They cannot object to the jurisdiction of the Tribunal in an appeal filed by them. In any case, if they have any grievance as to lack of jurisdiction, the correct procedure is to withdraw the appeal and file it before the Bench which has jurisdiction. They cannot take the shelter of filing a transfer application and overcome the hurdle of limitation - the contention of the Ld. AR that they have filed an application for transfer and the matter has to be transferred to ADD Bench, New Delhi, deserves to be disregarded in toto - this is a fit case within the jurisdiction of the Tribunal. Imposition of ADD - import of one second-hand EVA linear type injection moulding machine with accessories - N/N. 47/2009 - case of respondents are that neither the findings of the Designated Authority nor the Notification in question had envisaged levy of ADD on used machinery and that therefore ADD is not leviable on the subject goods - Held that:- The purpose and intent of the Anti-Dumping Duty is recognized and permitted by the World Trade Organization. ‘Dumping’ is said to occur when goods are exported by a country to another country at a price lower than its normal value and that causes injury to the domestic industry. Anti-Dumping measures rectify the situation arising out of such dumping of goods and its trade distortive effect. This is part of the General Agreement on Tariffs and Trade (GATT), 1994, commonly known as ‘The Anti-Dumping Agreement’ - Ld. Advocate is correct in his assertion that the legal framework for Anti-Dumping measures are enshrined in Sections 9A, 9B and 9C of the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 framed thereof. It is evident that the Anti-Dumping measures are targeted at goods which are dumped by a foreign country and as a resultant, the domestic industry is adversely affected. Obviously, the domestic industry would only be concerned about the products that it releases into the market, namely, the new items thereof and not the second-hand sales of the products that they have sold earlier. Comparison has to be of two comparables, namely, of new domestic products against new imported goods, as there cannot be a comparison between new domestic output and second-hand imported goods. Once we recognize that the basic purpose of the ADD is to serve as a price leveller to protect the domestic industry, the same intent and purpose is served even in case of second-hand machinery imports by way of re-appraisement of the declared value, based on the present condition of the imported item, by the Chartered Engineer - the import of second-hand machinery cannot be subjected to imposition of Anti-Dumping Duty by the particular Notification, which evidently would only be applicable for the import of new machinery or goods listed therein. Appeal dismissed - decided against Revenue.
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