TMI Blog2011 (10) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Tariff Act - from the documentary evidence available on record, it is clear that the goods under importation merit classification under Heading 87.16 and not under Heading 87.08 as alleged with the notice - Held that: In the absence of any such evidence it is very difficult to accept the contention of the department that the goods under importation merits classification under Heading 87.08 and attracts anti-dumping duty - Appeal is allowed - C/380/2008-MUM - A/461/2011-WZB/C-I(CSTB) - Dated:- 20-10-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri T. Vishwanathan, Advocate, for the Appellant. Shri R.K. Mahajan, Jt. CDR, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. This appeal is directed against the order-in-original No. 204/2007-08, dated 1-4-2008 passed by the Commissioner of Customs (Imports), Jawaharlal Nehru Customs House, Nhava Sheva. 2. The facts arising for consideration in this case are that M/s. King Kaveri Trading Company, had imported consignments of goods declared as Trailer Parts Steel Wheels Size 7.5 x 20 at Jawaharlal Nehru Customs House, during the period April, 2007 to November, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s namely; (i) Harish International v. C.C., 2007 (217) E.L.T. 528 (Tri.-Mum.); (ii) Jagriti Plastics Ltd. v. C.C. - 2009 (246) E.L.T. 53 (Guj.); (iii) Adani Exports Ltd. v. C.C., 2004 (171) E.L.T. 169 (Tri.-Mum.) had held that if the final duty is determined more than the provisional duty imposed then in terms of Rule 21 of the said Rules, 1995 differential duty cannot be demanded. 3.1 The ld. Counsel further submits that the demand of duty for the period beyond six months is time-barred as no misdeclaration or suppression of facts on the part of the appellant has been alleged in the show-cause notice. The ld. Counsel also submits that the appellants during the period 21-7-2007 to 17-8-2007 had classified the goods under Heading No. 8708 due to oversight, even though the goods in the bill of entry were declared as trailer parts - steel wheels . They had submitted a representation dated 15-12-2007 and 16-12-2007 wherein they had pointed out the mistake made by them in classifying the goods under tariff 8708 and requested for amendment of classification from Heading Nos. 8708 to 8716. Therefore, the demand of duty for the period from 7-4-2007 to 30-7-2007 is hit by limitation. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued very strictly. Therefore, if Heading 87.16 is not specified in the notifications, levying anti-dumping duty, then no such duty can be levied on such wheels, by referring to the findings given by the designated authority, recommending levy of anti-dumping duty. On the basis of above submission, the ld. Counsel prays for setting aside the impugned order and allowing their appeal. 4. The ld. Commissioner (AR) appearing for the Revenue submits as follows :- 4.1 During the period April, 2007 to November, 2007, the appellant filed 21 bills of entry for import of steel wheel rims size 7.5 20 from China. During 7-4-2007 to 31-7-2007 they classified the goods under Customs Tariff Heading 8708 70 00, while during August and September, 2007 they classified the goods under Customs Tariff Heading 8716 90 10 and again from 1-10-2007 to 31-10-2007 they classified these goods under CTH 8708 70 00 except in one bill of entry of 6-10-2007. In November, 2007, they classified the goods again under CTH 8716 90 10. The show-cause notice dated 30-1-2008 has been issued for classification of the subject goods under CTH 8708 70 00 as their principal use as the wheels for buses and trucks. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 x 20 . The description was the same even in respect of imports made prior to the imposition of anti-dumping duty as also after the imposition of anti-dumping duty. In the invoice dated 16th August, 2006, the goods are described as parts or accessories of trailers wheel rim size 7.25 x 20 in respect of bill of entry no. 891065, dated 6-9-2006; so is the case in respect of invoice dated 16-9-2006 relating to imports vide bill of entry No. 92072, dated 5-10-2006. The said description remained unchanged even after the imposition of anti-dumping duty and all these goods were supplied by the same foreign supplier. In other words both before as well as after the imposition of anti-dumping duty, the invoices depicted the goods under importation as trailer parts - wheel rims size 7.25 x 20 . Therefore, the goods under importation were commercially known as trailer parts as reflected in the invoices submitted by the party both prior to and after imposition of anti-dumping duty. As regards the contention of the Revenue that findings relating to imposition of anti-dumping duty covers in its scope wheels for trailers also, the notification imposing the anti-dumping duty restricts the levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to prove that the goods under importation were principally used for buses and trucks. The show-cause notice and the order-in-original merely states that it was observed that the impugned goods are principally used as the wheel for buses and trucks. However, no evidence, either by way of technical experts opinion or by way of commercial invoices or averments by traders who deal in such goods, have been adduced by the department to substantiate the observation. In the absence of such evidence, the department s case falls flat. Since anti-dumping duty, though imposed under a notification, is a levy, it is the responsibility of the Revenue to substantiate that the goods under importation attracts the levy. In the absence of any evidence to that effect, the department s case has no legs to stand. The Apex Court in the HPL Chemicals Ltd. and Vicco Laboratories case cited supra held that in matters of classification the onus is on the department to prove that the imported/manufactured goods are classifiable under the heading proposed by them. In the absence of any such evidence it is very difficult to accept the contention of the department that the goods under importation merits clas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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