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TMI Blog2011 (4) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 584/11 filed by the appellant was considered by us on 20.4.2011. It sought permission for bringing certain additional documents on record under Rule 23 of the CESTAT (Procedure) Rules. After examining the said documents and their nexus to this case, and after hearing both sides, we allowed the application on 20.4.2011. Consequently, a paper-book containing photocopies of documents paginated 224 to 386 was taken on record. On that day, the learned consultant for the appellant was also heard in the appeal. The learned Jt CDR for the Revenue has been heard today in reply and the learned consultant has been heard in rejoinder. 3. The basic facts of this case will now be stated briefly. The appellant had filed Bill of Entry No. 358472 dated 22.5.2003 for clearance of a consignment of goods imported from the People s Republic of China. The consignment consisted of 50,000 pieces of what was described as Unbranded Electronic 9W PL Tube and equal number of what was described as Unbranded Electronic 11W PL Tube . Both categories were classified, in the Bill of Entry, under Tariff Item 8539 29 90. The Bill of Entry further indicated the goods as RSP ITEM. As it appeared to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee. According to the learned Commissioner, the clarification offered by the Directorate-General of Anti-Dumping and Allied Duties (DGAD) was sufficient for the purpose of determining whether the goods imported by the assessee fell within the scope of Notification No. 138/02-Cus. Therefore, he did not find it necessary to seek the views of the domestic industry and also felt that it was not necessary to allow the assessee to cross-examine any expert from the office of DGAD. The assessee filed written submissions with the Commissioner and was subsequently heard by him. The adjudicating authority ultimately held that the goods imported by the assessee were CFLs without choke and attracted ADD under the aforesaid Notification. Having classified the goods under Tariff Entry 8539 31 10 and having rejected the declared description (PL Tube) and having held the goods to be CFLs without choke, the adjudicating authority confiscated the goods under Section 111 of the Customs Act on the ground of misdeclaration and imposed a fine of Rs 1,00,000/- in lieu of confiscation. It also imposed a penalty of Rs 50,000/- on the importer. The order passed by the Commissioner in de novo adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi viz., Order dated 1.11.2006 in appeal No. 7/2005 (Plaza Lamps and Tubes Ltd vs Commissioner of Customs [2007 (209) ELT 182 (Del), wherein it was held that Anti-Dumping Duty was not imposable on pie tubes of different lengths sealed to a plastic base (metal base in the case of single pie) with two leads from the assembly . The learned consultant submits that the item imported by the appellant is no different from the one considered by the Hon ble High Court and, therefore, the demand of Anti-Dumping Duty should be set aside. It is further pointed out that the Hon ble High Court followed, with approval, a ruling of the Authority for Advance Rulings (AAR). The AAR had, in the case of Permalite Electricals (P) Ltd [2004 (168) ELT 164 (AAR)] held the view that the item which was proposed to be imported by the said company was not a CFL without choke as commonly understood in the trade. The proposed item was held to be a sealed coated tube with filament . The learned consultant has also relied on a catalogue, which is claimed to have been obtained from the office of CESTAT, New Delhi under the Right to Information Act. This material is available at pages 343 to 347. This document cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the catalogue of the manufacturer, which is without the necessary lighting elements or electronic components and also without choke/ballast, cannot come anywhere near the description of an integrated CFL and hence would not attract anti-dumping duty under the Notification. 7. The learned Jt CDR has contested the above case of the learned consultant. It is submitted that the Notification for levy of Anti-Dumping Duty on CFLs originating in, or exported from, People s Republic of China and Hong Kong, and imported into India, was issued by the Central Government on the basis of the final findings of the Designated Authority, dated 14.11.2002. It is submitted that the designated authority, in its final findings, specifically held that CFLs without choke (or ballast) were also included in its investigations. In other words, the products under Anti-Dumping investigations included both CFL with choke/ballast and CFL without choke/ballast , originating in, or exported from, the People s Republic of China and Hong Kong, and imported into India. The Notification proposed levy of Anti-Dumping Duty on all imports of CFLs from People s Republic of China, whether with choke or without ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be very easy to circumvent the duty by merely removing a small insignificant part of a CFL or importing the same separately and claiming that complete CFL has not been imported. We are of the view that such interpretation that would allow and encourage circumvention and defeat a WTO compatible contingency trade protection measure is not warranted. Moreover, the GIR is an integral part of the same Customs Tariff Act, 1985 under which (Section 9A) anti-dumping duty is also levied and therefore, there is no reason to doubt its applicability specially when the product coverage under the notification is with specific reference to Chapter 85 of the Customs Tariff. Accordingly, the learned Jt CDR has urged that Interpretative Rule 2 (a) be pressed into service in this case to hold that the item imported by the appellant is a complete CFL. He has so argued by way of an alternative plea as he would still like to stick to his earlier position that the imported item is a finished CFL without choke as it could be readily used by a consumer without the aid of any other component or accessory. 10. The learned Jt CDR has also claimed support from an admission contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample, is a Governmental agency competent to test electronic goods like CFLs. It is submitted that both the test reports held the samples to be CFLs. It is submitted that, in the second round of adjudication, the assessee chose not to assail the above test reports. 14. The learned Jt CDR has also referred to the Board s Circular F. No. 528/53/2007-Cus (TU) dated 25.10.2007, wherein it was clarified that Anti-Dumping Duty imposed vide Notification No. 138/2002-Cus did not apply to parts/components of CFL. DGAD s clarification was mentioned in para 3 of the Board s Circular, which reads as follows: 3. The Directorate General of Anti Dumping and Allied Duties (DGAD) have clarified that anti-dumping duties were not recommended on parts/components of CFL. It has been stated by them that the anti-dumping in the above notification was recommended only in respect of two types of CFLs (i) Complete, ready to use compact fluorescent lamps wherein choke is integrated within the lamp (ii) Complete, ready to use compact fluorescent lamps wherein choke is external. Claiming support from the above clarification of the DGAD/CBEC, the learned Jt CDR submits that Anti-Dumping Duty wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is merely a component or part of CFL. We have seen a sample of the goods. It consists of a U shaped glass tube milky in appearance and fitted to a metallic base (vide Figure I), which, in turn, is fitted to a plastic base with two metallic leads protruding from the above assembly on either sides. It is not in dispute that the plastic base of the item can be inserted into a socket/holder in General Lighting System (GLS) or in the casing of an emergency lamp. If the lamp gets fused due to prolonged use or otherwise becomes useless due to damage, it can be replaced with a new one. It is not in dispute that the choke/ballast, which is required for operating the lamp, is inbuilt in the GLS/casing of emergency lamp. Therefore, what is referred to as CFL in common parlance is the item which is bought by the consumer from the market and inserts in the socket/holder of the GLS/casing of emergency lamp etc. Obviously, the item under consideration is a CFL without choke . 18. The above fact would become distinct to a prudent man who has the benefit of having an exploded view of the so-called integrated CFL referred to by the learned consultant, a sample of which was also shown to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; (d) in case of exports of CFL with choke by M/s Philips & Yaming, People s Republic of China, causal link could not be established, as the landed value of such exports was more than the non-injurious price, and has proposed to impose definitive anti-dumping duty, on all imports of CFL, except the exports of CFL, both with and without choke, by M/s Philips & Yaming, People s Republic of China, originating in, or exported from, People s Republic of China and Hong Kong; Now, therefore, in exercise of the powers conferred by sub-section (1) and (5) of Section 9A of the said Customs Tariff Act, read with rule 18 and rule 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the above findings of the designated authority, hereby imposes on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the said Customs Tariff Act, originating in or exported from the country specified in column (2) of the Table annexed hereto, when exported by exporter mentioned against the corresponding entry in column (3) of the said Table ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. The Hon ble High Court held that the item imported in that case was only a substantive part of CFL and hence not subject to Anti-Dumping Duty. 21. The substantive issue arising in the instant case has to be examined in the facts of this case. We have had the advantage of the facts presented before us by the appellant, as also the samples produced by them. We have also had the benefit of the clarifications issued by the DGAD and CBEC which are to the effect that complete, ready to use CFL, wherein choke is external is also within the coverage of Notification No. 138/02-Cus for the purpose of levy of Anti-Dumping Duty. It is not difficult to observe that the choke which is inbuilt in the GLS is external to the CFL. The decision rendered by the Hon ble High Court without considering such clarifications or the provisions of Section 28J of the Customs Act, or even the form in which the item in question is used by the ultimate consumer cannot, in our view, be of any aid to the appellant. Therefore, with great respect, we hold that the case in hand has to be dealt with on its own factual matrix. 22. In the case of Anchor Daewoo Industries Ltd vs Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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