TMI Blog2014 (1) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... able on like goods in India. Government has already issued notification 51/2000-Cus dated 27-04-2000 exempting anti-dumping duty for imports against Advance Licenses - when it was decided that the importer was not eligible for exemption under notification 64/88-Cus the appellants were given opportunity to claim alternative notification 65/88-Cus wherever such plea was taken - it is proper to remand the matter to the adjudicating authority to examine the eligibility to notification 51/2000-Cus dated 27-04-2000. The impugned orders of lower authorities are set aside and the matter is remanded to the adjudicating authority to decide on the benefit of notification 51/2000-Cus dated 27-04-2000 - Decided in favour of Revenue. - Appeal No.C/500/2002 - Final Order No. 40646/2013 - Dated:- 18-12-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri Parmod Kumar, JC (AR) For the Respondent : Shri N. Viswanathan, Advocate JUDGEMENT Per Mathew John 1. The respondent imported Potassium Permanganate BP 93 from China and filed 3 Bills of Entry, namely, 08257 dt. 28.4.2000, 08942 dt. 9.5.2000 and 10047 dt. 23.5.2000 for clearing the goods from the warehou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WHEREAS the Designated Authority vide its final findings in review, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 18th December, 1998 has concluded that - (a) Potassium Permanganate originating in, or exported from, the People s Republic of China, had been exported to India below normal value; (b) Domestic industry would suffer material injury in case the anti-dumping duty in force is removed; (c) the injury to the domestic industry would be caused from imports from Peoples Republic of China in case the anti-dumping duty in force is removed. Now, therefore, in exercise of the powers conferred by sub-sections (1) and (6) of section 9A of the said Customs Tariff Act, read with rule 23 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 after considering the aforesaid findings of the Designated Authority, hereby imposes on Potassium Permanganate, falling under Chapter 28 of the First Schedule to the said Customs Tariff Act, originating in, or exported from, the People s Republic of China and imported into India, an anti-dum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) K.C. Cement Industries Ltd. Vs CC Kandla - 2010 (249) ELT 153 (Tri.-Ahmd.). Therefore, Ld. AR submits that the appeal filed by Revenue may be allowed since the matter is already decided by the Tribunal. 4. Opposing the prayer, Ld. Advocate for the respondent submits that decisions relied upon by Ld. AR for Revenue have not examined the meaning of the word "levied" used in the notification as compared to "assessed" and "collected" which are different from "levied". He argues that the Commissioner (Appeals) has examined this aspect with reference to the decision of the Hon. Apex Court in the case of M/s. National Tobacco Co. of India Ltd. - 1978 (2) ELT (J 146) (SC) and also decision of the Special Bench of the Tribunal in the case of Collector of Customs, Bombay Vs Parkh Dye-Chem Industries (P) Ltd. - 1986 (24) ELT 119 (Tri.). 5. His argument is that when an order is passed sub silentio on a very important aspect of the dispute, such order cannot have any precedent or binding effect. In support of this argument he has cited few cases like Hindustan Motors Ltd. Vs CCE - 1993 (63) ELT 723 (Tribunal) and Dhanlakshmi Texturisers Vs UOI - 2005 (179) ELT 23 (Guj.). 6. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/2000-Cus dt. 27.4.2000 issued prior to first import made by respondent in this regard. The respondent could not claim such exemption at the time of assessment but in view of the decision of the Tribunal in the case of Sonic Band International Vs CCE Vadodara - 1988 (109) ELT 524 (Tribunal) the said exemption could be extended to respondent even at this stage. 11. Ld. advocate further submits that adjudicating authority has gone ahead with the decision without actually ascertaining from the designated authority what exactly was the rate of customs duty that was taken into account for deciding the cut off landed value of Rs. Rs.61,153/- below which anti-dumping duty is to be paid. Therefore, he submits that appeal filed by Revenue may be rejected. 12. We have considered submissions on both sides. The argument of the learned advocate for respondent is that the words "duty levied" refers only to duty as prescribed under the Tariff by Parliament without giving effect to the notification. There is nothing in the decision of the Hon Apex Court in the case of National Tobacco Co. of India Ltd, relied upon by the Commissioner (Appeal), to this effect. In fact in that case the Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overruled both by practice as well as by decisions of the Apex Court as mentioned above. Therefore, we are of the view that the word "levied" used in notification 16/99-Cus cannot be interpreted to mean duty as specified in the Tariff. Currently no distinction is being made between duty levied by parliament and effective rates notified by the executive in exercise of delegated power of legislation. This position is consistent with the position being canvassed by Revenue and as decided by Tribunal in the cases relied upon by Revenue. For this reason the order of the Commissioner(Appeal) needs to be set side. 15. On the other hand this interpretation seems to produce ridiculous outcome, in the facts of this case, as canvassed by the respondent and recorded in para 9 above. In the matter of levy of anti-dumping duty this interpretation is also in contradiction with clarification issued by CBEC vide of Circular 25/2002-Cus dated 09-05-2002, though in the case of another product. It appears that the Designated Authority while fixing anti-dumping duty takes only normal customs duties as is payable by an importer and special cases like imports against DEEC. The injury that gets caused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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