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TMI Blog2015 (8) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... r. No.3 of the Notification No.34/98-Cus dated 13.6.1998, and (iv) Notification No.41/97-Cus dated 30.4.97 respectively. 2. At the time of import, the appellant furnished a bond containing an undertaking to pay duty on imported goods cleared under Notification No.30/97 and 41/97 in the event of failure to fulfill its export obligation. 3. It is an admitted position that the appellant failed to fulfill its export obligation in the terms of the exemption notifications. The entire LAM so imported has instead been used by the appellant in its factory for the manufacture of pig iron. 4. Demand of duty of Rs. 7.21 crores was sought to be raised. The break up of demand of Rs. 7.21 crores is as under: 1. Basic Customs Duty Rs.1.01 crores 2. Antidumping Duty Rs.5.00 crores 3. Special Customs Duty Rs.0.50 crore 4. Special Additional Duty Rs.0.66 crore 5. Cess Rs.0.02 crore Total Rs.7.21 crores. 5. Pending final adjudication of the show cause notice by the Commissioner, the appellant duly paid the entire duty payable towards BCD, SAD and SCD after considering partial exports already made. The appellant did not make any payment towards ADD. 6. The Commissioner of Customs vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that nothing has been diverted to the domestic tariff area and sold in that area, and the entire imports made have been used by the appellant captively in its factory for the manufacture of pig iron. He further argued that he could not be worse off in an appeal filed only by the appellant herein to CESTAT and that on the assumption that the appellant was liable to pay Anti-dumping duty, they should only pay the said duty at the lower rate prescribed by the Commissioner as Revenue had not appealed to the Tribunal against the Commissioner's order. 9. Shri Radhakrishnan, learned senior counsel appearing on behalf of the revenue countered the aforesaid submissions and submitted that the exemption contained in the Anti-dumping duty Notification 69 of 2000 was only prospective and, hence Anti-dumping duty had to be paid for the relevant period. He further submitted that interest in any case was payable as Notification No.30 of 1997 independently levied a charge of interest. Further, he also supported the Commissioner's order and the Tribunal so far as the various other aspects of this appeal are concerned. 10. We have heard learned counsel for the parties. In order to appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of Injury) Rules, 1995, the Central Government, after considering the aforesaid findings of the Designated Authority, hereby imposes on Metcoke falling under heading No. 27.04 of the First Schedule to the said Customs Tariff Act, originating in or exported from China PR and imported into India, an anti-dumping duty calculated at a rate as equivalent to the difference between Rs. 4673 and the landed value of Metcoke, per metric tonne; 2. The anti-dumping duty imposed under this notification shall be levied with effect from the date of imposition of provisional duty i.e. 6th of May, 1998." 11. The final Notification dated 27.10.1998 was challenged by the Pig Iron Manufacturers Association. By its judgment reported in Pig Iron Manufacturers Association v. Designated Authority, Ministry of Commerce, 2000 (116) ELT 67 (Tribunal), the Tribunal passed the following order:- "12. In the light of the above discussions and findings based on the data available on record, we pass the following orders:- 1. All imports of metcoke exported from or originating in the People's Republic of China to India be subjected to anti-dumping duties at the following rates as indicated against eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to imports of Metcoke by a manufacturer of pig iron or steel using a blast furnace if he follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996." 13. The bone of contention in the present appeal is the last paragraph of this Notification. 14. It is clear that under Rule 20(2)(a) of the Customs Tariff (Identification, Assessment And Collection of Antidumping Duty on Dumped Articles and For Determination of Injury) Rules, 1995, where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or threat of injury and the further finding that the effect of imports in the absence of provisional duty would have led to injury, the Anti-dumping duty may be levied from the date of imposition of provisional duty. In the present case, therefore, it will be noticed that the final Notification dated 27.10.1998 is said to come into force from the date of the first Notification dated 6.5.1998 imposing provisional duty in the present case. It is clear that as the final Notification dated 27.10.1998 has been superseded by the Notification dated 19.5.2000, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blast furnace units from ADD was vital for their survival." 16. On reading these minutes it becomes clear that Anti-dumping duties that had been imposed upon the Blast Furnace Industry had an adverse impact upon the industry and that the intention of levying an Anti-dumping duty was not to harm their interests. Paragraphs 6 and 7 of the said minutes in particular seem to suggest that the exemption that was contemplated by the minutes of such Blast Furnace units was something that could take place only in the future. 17. Quite apart from this, it is clear that no exception was carved out before 19.5.2000 in favour of Blast Furnace Manufacturers either when the provisional Anti-dumping duty was first imposed or when the final Notification dated 27.10.1998 was issued. It is clear that the last part of the Notification dated 19.5.2000 creating an exception in favour of persons like the appellant has no reference to the earlier proceedings in the case and is obviously intended to apply only prospectively. This is also clear from the language used in the said clause - 'nothing contained in the Notification "shall apply to imports" .... Using a Blast Furnace "if he follows" the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Customs binding himself to pay on demand an amount equal to the duty leviable, but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been complied with, together with interest at the rate of twenty-four percent per annum from the date of clearance of the said materials." 20. A reading of this Notification makes it clear that interest at the rate of 24% per annum is only liable to be paid if at the time of clearance of the imported materials the importer executes a bond in which such interest is stated to be payable. We have been shown the bond executed in the present case. It says nothing about any interest that is payable in case the conditions of the Notification No.30 of 1997 are not met. On this short ground alone, it is clear that no interest is payable on any of the customs duties that are due from the appellant. 21. It was also argued by Shri Lakshmikumaran that Section 101 of the Finance Act, 2009 has been given a retrospective application with effect from 1.1.1995. Section 9A sub-section (8) as substituted with effect from 1.1.1995 reads as follows:- "(8) The provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the law." We respectfully agree with the aforesaid view. In addition, it is clear that this Court has held that the levying of interest can only be by a substantive provision (See: J.K. Synthetics Ltd. v. Commercial Taxes Officer, (1994) 4 SCC 276 at paragraph 16), thereby making it clear that such levy can only be prospective. 25. Further, in India Carbon Ltd. v. State of Assam, (1997) 6 SCC 479, this Court held:- "11. Section 9(2-A) makes applicable to the assessment, re-assessment, collection and enforcement of Central sales tax the provisions relating to offences and penalties contained in the State Acts as if the Central sales tax was a State sales tax. But Section 9(2-A) makes no reference to interest. 12. There is no substantive provision in the Central Act requiring the payment of interest on Central sales tax. There is, therefore, no substantive provision in the Central Act which obliges the assessee to pay interest on delayed payments of Central sales tax. 13. Now, the words "charging or payment of interest" in Section 9(2) occur in what may be called the latter part thereof. Section 9(2) authorises the sales tax authorities of a State to assess, reassess, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as if the said sub-section had been repealed by the Central Act. (3) The special duties of customs referred to in sub-section (12) shall be in addition to any duties of customs chargeable on such goods under the Customs Act or any other law for the time being in force. (4) The provisions of the Customs Act and the rules and regulations made thereunder, including those relating to refunds and exemptions from duties shall, as far as may be, apply in relation to the levy and collection of the special duties of customs leviable under this section in respect of any gods as they apply in relation to the levy and collection of the duties of customs on such goods under that Act or those rules and regulations, as the case may be." 29. Similarly, special additional duty is levied under Section 3A of the Customs Tariff Act inserted by the Finance Act of 1998. Section 3A reads as under:- "Special additional duty.- (1) Any article which is imported into India shall in addition be liable to a duty (hereinafter referred to in this section as the special additional duty), which shall be levied at a rate to be specified by the Central Government, by notification in the Official Gazette, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957)." 30. Section 3(2) of the Customs Tariff Act as it stood at the relevant time reads as under: "(2) For the purpose of calculating under this section, the additional duty on any imported article, where such duty is leviable at any percentage of its value, the value of the imported article shall, notwithstanding anything contained in Section 14 of the Customs Act, 1962 (52 of 1962), be the aggregate of- (i) The value of the imported article determined under sub-section (1) of the said Section 14 or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; and (ii) Any duty of customs chargeable on that article under Section 12 of the Customs Act, 1962 (52 of 1962), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of customs" 31. Similarly, Section 3A(2) dealing with special additional duty as it stood at the relevant time reads as under:- "(2) For the purpose of calculating under this section the special additional duty on any imported article, the value of the imported article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected, with effect from such date as may be specified in this behalf by the Central Government by notification in the Official Gazette, on all goods mentioned in the First Schedule to the Tariff Act as amended by this Act or any subsequent Act of Parliament, a regulatory duty of customs which shall be - (a) twenty-five per cent of the rate, if any, specified in the said First Schedule read with any notification issued under Section 3A or sub-section (1) of Section 4 of the Tariff Act; or (b) ten per cent of the value of the goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962 whichever is higher: Provided that different dates may be specified by the Central Government for different kinds of goods. (2) Sub-section (1) shall cease to have effect after the 31st day of March, 1964 except as respects things done or omitted to be done before such cesser; and Section 6 of the General Clauses Act, 1897 shall apply upon such cesser as if the said sub-section had then been repealed by a Central Act. (3) The duty of customs leviable under this section in respect of any goods referred to in sub-section (1) shall be in addition to any other dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of customs, but does not include - (a) the special additional duty referred to in section 3A; (b) the safeguard duty referred to in sections 8B and 8C; (c) the countervailing duty referred to in section 9; (d) the anti-dumping duty referred to in section 9A; and (e) the duty referred to in sub-section (1)" The amended Section 3A(2) reads as follows:- "(2) For the purpose of calculating under this section the special additional duty on any imported article, the value of the imported article shall, notwithstanding anything contained in section 14 of the Customs Act, 1962 or section 3 of this Act, be the aggregate of - (i) The value of the imported article determined under sub-section (1) of section 14 of the Customs Act, 1962 (52 of 1962) or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; (ii) Any duty of customs chargeable on that article under section 12 of the Customs Act, 1962 (52 of 1962), and any sum chargeable on that article under any law for the time being in force as an ..... 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