TMI Blog2007 (8) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiry of the provisional levy and the levy of final anti-dumping duty, under Rule 21 of the Anti Dumping Rules, 1995. Appeal allowed. - C/207, 208, 209, 195, 281, 285, 280/2005 and C/1306/2006 - A/412-419/2007-WZB/C-I/(C.S.T.B.) - Dated:- 1-8-2007 - Ms. Jyoti Balasundaram, Shri K.K. Agarwal, JJ. REPRESENTED BY : S/Shri J.C. Patel, V. Sridharan and Anil Balani, Advocates, for the Appellant. Shri Ajay Saxena, DR, for the Respondent. [Order per : Jyoti Balasundaram, Vice-President]. All the above appeals arise out of separate Orders-in-Appeal passed by the Commissioner of Customs (Appeals), Mumbai involving common issues and are hence heard together and disposed of by this common order. 2. The issue relates to levy of anti-dumping duty on imports of vitrified/porcelain tiles from China/UAE under the provisions of Notification No. 73/03-Cus. dated 1-5-03. 3. By Notification No. 50/02-Cus. dated 2-5-02, anti dumping duty was imposed in respect of vitrified/porcelain tiles exported/originating from China/UAE, and the levy was effected upto and inclusive of the 1st day of November, 2002. M/s. Harsh International and Abhinav Ceramic imported one consignment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment has not been borrowed, either explicitly or impliedly, even today, and therefore, cannot be applied for the purposes of assessment and collection of anti dumping duty. Hence, the provisional assessment resorted to in the present case is non est in law. 5. In this regard, we rely upon the decision of Supreme Court in Sneh Enterprises v CC, New Delhi 2006 (202) E.L.T. 7 (S.C.). In that case, on the date of import, there was no anti dumping duty leviable on the goods imported into India. However, the anti-dumping duty was in force/came to be levied on the imported goods, at the time of removal from the bonded warehouse. The department sought to demand anti dumping duty on the goods cleared from the warehouse, relying upon Section 15(1)(b) of the Customs Act. The Supreme Court held that, in the absence of any provision in Sections 9A to 9C borrowing Section 15 of the Customs Act relating to date of determination of rate of duty for the purpose of levy and collection, anti dumping duty cannot be levied and collected from the warehouse at the time of ex-bond clearance from the warehouse. The Supreme Court found that Section 15 was borrowed under Section 9A(8) at the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for one is provisional for all will also not apply to the present case. Assuming that the provisional assessment was made under Section 18 for the purpose of levy of duty under Section 12 of the Customs Act, 1962, the said provisional assessment cannot be applied for levy and collection of any-dumping duty, in the absence of any provisions in Section 9A to 9C, borrowing Section 18 of the Customs Act, 1962. The ld. DR also contended that PD Bond has been executed by the appellants, agreeing to provisional assessment and the said bond does not refer to anti dumping duty. However, the show cause notice issued to each of the appellants specifically states that the assessment was made provisional for the purpose of levy of anti dumping duty under Notification No. 50/02-Cus. and hence mention or non mention of amount of anti dumping duty payable in the PD Bond is not a determinative factor as to whether provisional assessment was for levy of anti dumping duty. 6. It was also contended by the Revenue that in terms of Section 9A(6), anti dumping Rules, 1995 have been notified by the Central Government for the purposes of assessment and collection of anti-dumping duty. We note that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking would be enforced without recourse to Section 28 which is not otherwise applicable. Section 28 will not apply to a case where there was no non-levy or short levy on the date of assessment. Section 9A(8) borrows the provisions under the Customs Act relating to short levy or non levy contained in Section 28. This Section will not apply in the present case as, on the date of assessment, there was no short levy or non levy of anti-dumping duty, since on the date of assessment there was no valid Notification levying anti-dumping duty. Notification No. 50/02-Cus. had expired on 1-11-02 and it was only on 1-5-03 that a Notification was issued levying anti-dumping duty retrospectively. Thus, the bills of entry for the interregnum period have been assessed validly, without levying anti dumping duty. 9. Levy with retrospective effect is not governed by Section 28 of the Customs Act, in the light of the decision in Chhotabhai Jethabhai Patel and Co. v. Union of India, AIR 1952 Nagpur 139. 9.1 The facts leading to the decision by the Nagpur High Court and the enactment of Rule 10A have been set out by the Supreme Court in 1978 (2) E.L.T. J399 in the case of N.B. Sanjana, Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehouse register. Rule 144 prohibits the removal of any goods from the warehouse except on payment of duty. The scheme of the Rules is that all duty is collected before the goods are removed from a warehouse except in a case falling under Rule 10 or Rule 160. The learned Counsel for the respondents relied upon Rule 159. Having regard to the context and collocation that Rule must be held to contemplate the continued existence of the goods in the warehouse. There is no rule at all to cover a case of the kind created by sub Section (2) of Section 7 under which the Union Government is empowered to collect duties which have not been collected but which would have been collected and as we hold, even after the goods have been cleared and removed from the warehouse. The Collector or the Central Excise Officers are empowered to exercise powers conferred by the rules and if the rules have not provided, as we hold they have not, to cover a case of this kind, they cannot proceed to collect a tax, though it has been properly levied and is payable to the Government. The High Court held that Rule 10 under which the demand was raised, cannot apply to such retrospective levy. The deficienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or final duty. Provisional duty is imposed under Section 9A(2) whereas final duty is imposed under Section 9A(1). Thus, both provisional duty and final duties are imposed under Section 9A. In the normal course, provisional duties are imposed first, followed by final duties. In terms of Section 9A(5), five year period shall be reckoned from the date of imposition. Assuming there is no gap between the expiry of the provisional duty and the imposition of final duty, then if the five year period is reckoned from the date of final duty, anti-dumping duty would come to be levied for a period exceeding five years. This would lead to a violation of Section 9A(5). Therefore, it is necessary to impose final antidumping duties with effect from the date of levy of provisional anti-dumping duty. This has been the practice of the Government of India. In case of a break i.e. if final duties are notified after expiry of the provisional duties and the final duties are still made effective from the date of levy of provisional duty, five year period will be reckoned correctly from the date of levy of provisional duty. However, in such a case, one cannot ignore Rule 21(1) und interpret the notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20(2)(a). This being the interpretation placed by the Tribunal on the term levy for the purposes of Rule 20(2)(a), the same interpretation has to be placed on the term imposed appearing in Rule 21(1). It would therefore mean, that actual imposition or levy is not contemplated. Levy and imposition are terms used interchangeably, connoting levy of duty. 13. The Supreme Court in N.B. Sanjana, Assistant Collector of Central Excise v. The Elphinstone Spinning and Weaving Mills Co. Ltd. - 1978 (2) E.L.T. J399 has held that levy and collection are two different aspects and the term levy will not include actual collection. Para 14 is reproduced below : 14. Weare not inclined to accept the contention of Dr. Syed Mohammad that the expression levy in Rule 10 means actual collection of some amount. The charging provision Section 3(1) specifically says, There shall be levied and collected in such a manner as may be prescribed the duty of excise . It is to be noted that sub-section (1) uses both the expressions levied and collected and that clearly shows that the expression levy has not been used in the Act or the Rules as meaning actual collection. Dr. Syed Mohammad is, no do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction that the amount should have been actually paid is accepted then in case like the present one on hand, when no duty has been levied, the Department will not be able to lake any action under Rule 10. Rule 10-A cannot apply when a short-levy is made through error or mis-construction on the part of an officer, as such a case is specifically provided by Rule 10. Therefore, in our opinion, the proper interpretation to be placed on the expression paid is ought to have been paid . Such an interpretation has been placed on the expression paid occurring in certain other enactments..... Hence, in view of Rule 21(1), no anti-dumping duty can be collected for the interregnum period in the present cases. 14. We now take up the additional submission in the case of Abhinav Ceramics In the case of Abhinav Ceramics the bill of entry was filed on 1-5-02, i.e. a day prior to the issuance of Notification No. 50/02-Cus. dated 2-5-02 levying provisional anti dumping duty. Though the bill of entry was filed on 1-5-02 and import took place on 1-5-02, the customs department charged anti dumping duty; in terms of Notification No. 50/02-Cus. and the same was paid by the appellants. By the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contemplated by Rule 22 of the Anti dumping Rules, Nanhai and Prestige applied to the Designated Authority for initiation of new-shipper review. Nanhai pointed that, while issuing Notification No. 73/03-Cus. exports made during the period 1-4-2000 to 31-3-01 (original period of investigation) alone were examined and considered to decide whether such exports by Chinese producers resulted in dumping of the goods in India. Nanhai claimed that its export to India were only during the period Nov. 2002 to March 2003, which is after the period of investigation considered while issuing Notification No. 73/03. Acting on the application the Designated Authority vide Notification No. 15/2/03-DGAD dated 23-5-03 recommended provisional assessment of the goods imported from M/s. Nanhai/M/s. Prestige, pending verification/completion of the review application. The Ministry of Finance also issued Notification No. 98/03-Cus. dated 1-7-03 ordering provisional assessment of the tiles imported into India produced by M/s. Naihai and exported by M/s. Prestige and suspended levy of anti dumping on such imports pending completion of investigation. In the Notification dated 23-5-03, Designated Authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , China PR (Producer) through M/s Prestige General Trading, Dubai, UAE (Exporter), as fixed definitive duty mentioned in Col. No. 3 till the completion of the review. (v) Ministry of Finance issued Notification No. 98/2003-Customs, dated 1st July 2003, which inter-alia provided that pending the outcome of the review by the Designated Authority, vitrified/porcelain tiles, other than vitrified industrial tiles, falling under Chapter 69 of the Customs Tariff Act produced by M/s Nanhai, Shagyuan Oulin Construction Co., Ltd., China PR and exported by M/s. Prestige General Trading, UAE would be subjected to provisional assessment till the review was completed. (x) The period of investigation in this new shipper investigation is for 12 months i.e, lst July 2002 to 30th June 2003 for dumping determination. G. Final Findings and Recommendations of the Authority 46. After considering the foregoing the Authority concludes that (i) Export price of Vitrified/porcelain Tiles exported to India produced by M/s. Nanhai Shagyuan Oulin Construction Co. Ltd., China PR (now known as Foshan Oulian Construction Ceramic Ltd.) and exported from M/s Prestige General Trading, Dubai, UAE is above it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the following amendments :n the notification No. 73/2003-Customs, dated the 1st May, 2003, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 376 (E), dated the 1st May, 2003, namely :- In the said notification, before the Explanation, the following proviso shall be inserted, namely :- Provided that no anti-dumping duty shall be imposed on the imports into India of subject goods falling under chapter 69 of the First Schedule to the said Customs Tariff Act, produced by M/s. Nanhai Shagyuan Oulian Construction Ceramic Co. Ltd., China PR (now known as M/s. Foshan Changcheng Oulian Construction Ceramic Ltd., China PR) and exported by M/s. Prestige General Trading, Dubai, UAE. . 2. The amendments under this notification shall be effective from the date of issue of the notification ordering provisional assessment, that is, the 1st July, 2003. The period of investigation (i.e. data) examined by the Designated Authority related to the specific time period 1st July 02 to 31st July 03. Since exports from M/s Nanhai/ M/s Prestige are above the normal price and there is no dumping of goods by them into India, no anti-dumping du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sments made in the present cases are non est in the eye of law for the reason that Sec. 18 of the Customs Act 1962 relating to provisional assessment has not been borrowed for the purpose of anti-dumping duty. (b) A levy introduced retrospectively cannot be recovered under the provisions of Sec. 28 of the Customs Act, 1962 in the light of the High Court decision in Chhotabhai Jethabhai Patel and Co. v. Union of India, (AIR 1952 Nagpur 139). (c) No anti dumping duty can be levied on imports made during the interregnum period between the expiry of the provisional levy and the levy of final anti-dumping duty, under Rule 21 of the Anti Dumping Rules, 1995. (d) Anti dumping duty cannot be levied upon M/s. Nitco Tiles Ltd. for the additional reason that the Designated Authority who carried out investigations under the New Shipper Review has concluded that there is no dumping of Vitrified/porcelain tiles exported to India from M/s. Nanhai and M/s. Prestige (suppliers of M/s. Nitco Tiles Ltd. 19. In view of the above findings, we do not consider it necessary to record any finding on the additional submissions made by M/s. Duncan Trading Company, Earth International, Euro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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