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2020 (2) TMI 359 - AT - CustomsAnti-Dumping Duty - Final levy of duty is higher than the provisional levy of duty - demand of differential duty - Interpretation of statute - Rule 21 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 issued vide Notification No. 2/95-Cus. (N.T.), dated 1st January, 1995 - finalization of duty by N/N. 88/2007-Customs, dated 24.07.2007 whereby the Final Antidumping Duty was fixed - HELD THAT:- From the plain reading of the above rule 21(1) it is clear that in case where the Central Government has imposed Anti-dumping Duty on provisional basis and at the time of finalization if the Anti-dumping Duty is fixed on the higher side then the differential duty shall not be collected from the importer. In the present case though as per provisional Notification No. 106/2006-Cus the lower Anti-dumping Duty was imposed and by final Notification No. 88/2007-Customs, the rate of Anti-dumping Duty was higher, the provisional Anti-dumping Duty was very much considered in the Bills of Entry filed by the appellant and since the price declared by the appellant in the Bill of Entry was not lower than the Anti-dumping value the Anti-dumping Duty shown in the Bills of Entry is ‘nil’. In this case it is very clear that at the time filing of Bills of Entry there was Anti-dumping Duty imposed and since the Anti-dumping Duty arrived at is zero, there was no need of any payment on assessment of Bills of Entry. There is cleared imposition and collection of Anti-dumping Duty at the time of assessment of Bill of Entry. Moreover, as per our interpretation if there is any difference between the rate of Antidumping Duty in the provisional notification and final notification the differential amount of Anti-dumping Duty shall not be collected, therefore, only because in the appellant’s case at the time of assessment there was ‘nil’ Anti-dumping Duty, the differential Anti-dumping Duty as per the Final Notification cannot be demanded. Identical issue decided in the case of MERCHEM LTD. VERSUS COMMISSIONER OF CUSTOMS, COCHIN [2014 (5) TMI 523 - CESTAT BANGALORE] where the Tribunal has taken a view, in such circumstances differential Anti-dumping Duty is not payable - Though the aforesaid decision is Interim Stay order but we agree with the view expressed by the Tribunal. Thus, in terms of Rule, 21(1) the appellant are not liable to pay the differential Anti-dumping duty - appeal allowed - decided in favor of appellant.
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