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2016 (1) TMI 827 - CESTAT NEW DELHI (LB)

2016 (1) TMI 827 - CESTAT NEW DELHI (LB) - 2016 (335) E.L.T. 505 (Tri. - Del.) - Levy of anti-dumping duty on import of PVC resin DG-1000K from China - Notification No.11/2008-Cus - whether Notification No. 38/2008-Cus. dated 24.3.2008 inter alia amending Sl No. 19 of Notification No. 11/2008-Cus. dated 23.1.2008 has retrospective effect or prospective effect. - Revenue says that when name of the manufacturer was not appearing in Column No.8 of the notification dated 23.1.2008, the export shall .....

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from the date when definitive anti-dumping duty was initially imposed on the product imported by the Appellants. For want of such an express intention in the Notification, it is difficult for me to accept the proposition that the amendment to the entry at Sr. No.19 was retrospective. - Classification of imported product will be rightly under Sr. No.23 under Notification dated 23.1.2008. However, after amendment of notification in column 8 of Sr. No.9 of notification dated 24.3.2008, classifi .....

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r (Technical) And Justice G. Raghuram, President For the Appellant : Shri Piyush Kumar, Advocate For the Respondent : Shri Rakesh Puri, DR ORDER Per D.N. Panda: Appellant imported PVC resin DG-1000K from China manufactured by M/s. Tianjin Dagu Chemicals Co. Ltd. It agrees that the goods so imported were liable to anti dumping duty but claims that the goods being originated in China and manufacturer was from China as well as export was made therefrom, such goods shall fall under Sl.No.19 of Notif .....

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cation issued on 23.1.2009 was amended on 24.3.2008 bringing name of that manufacturer to appear in column No.8 of the original Notification dated 23.1.2008 prescribing the levy of anti-dumping duty as exporter of the subject goods. Revenue says that when name of the manufacturer was not appearing in Column No.8 of the notification dated 23.1.2008, the export shall fall under Sl.No.23 of the said Notification being any exporter as envisaged by the entry. 3. For convenience of reading both Sl.Nos .....

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ees 4. Ld. Counsel Shri Piyush Kumar appearing for appellant submits that anti-dumping duty is leviable on the goods exported from China being manufactured in that country. Original Notification dated 23.1.2008 imposed duty on the goods exported by Tianjin Bohai Chemical Industries Import and Export Corporation of China appearing in column (8) of Sl.No.19 of that Notification. On 24.3.2008 name of the manufacturer i.e. M/s. Tianjin Dagu Chemicals Co. Ltd. was added in column (8) of Sl.No.19 of t .....

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ted as export falling under S.No.19 of Notification dated 23.1.2008 but not prior to that. 6. Rival submission of both gives rise to duty difference between both serial numbers as prescribed by column No.9 of the Notification dated 23.1.2008. But the fact remains the same is that as per bill of entry, export of subject goods was made from China by the producer itself and the goods were manufactured in China. Amending Notification No.38/Cus-2008 dated 24.3.2008 brought out name of the manufacture .....

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notification whereby subject goods exported by producer-exporter escaping anti-dumping duty were brought to levy from the date the definitive anti-dumping duty was imposed. Amendment extended scope of levy brining the export made by both producer and exporter to the ambit of levy. Therefore, the amending notification is to be read in the manner that advances the object of extending scope of levy to gather Revenue without escapement of a manufacturer from levy under Sl.No.19 of the Notification. .....

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generality excludes specific. Therefore, appellants imports fall under the purview of Sl.No.19 of the Notification dated 23.1.2008 since country of origin, producer and exporter belong to China and levy of anti-dumping duty was goods specific and country specific. This being most specific case than the generalization prescribed by sl.no.23 of the Notification, case of the appellant is not possible to be excluded from sl.no.19 from levy of anti-dumping duty on imports. Accordingly amount of anti- .....

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ort of PVC resin by J.P. Overseas would be subjected to anti-dumping duty under entry at Sr.No.19 of Notification No.11/2008-Cus dated 23.01.2008 inasmuch as the subsequent amendment by Notification No.38/2008-Cus dated 24.03.2008 was curative in nature. Since I differ with the view taken by the Ld. Member (Judicial), I am recording my separate findings hereunder. 9. The facts of the case are that the Appellants had imported PVC resin DG-100K from a Chinabased manufacturer Tianjin Dagu Chemical .....

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emical Industries Import and Export Corporation whereas the entry at Sr. No.23 covered any other combination of producer-exporter. The goods covered under Sr. No.19 attracted lower anti-dumping duty as compared to those under Sr.No.23. In these circumstances, the Appellants claimed that their product did not attract any anti-dumping duty, as they were not covered under either of these entries. Though they abandoned this stand later on. The Revenue on the other hand sought to levy duty prescribed .....

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claim that the amendment had a retrospective effect, a view upheld by the Ld. Member (Judicial). The Member (Judicial) has expressed the view that the rationale behind the amendment was to overcome the shortcomings in the earlier Notification whereby subject goods exported by producer-exporter escaping anti-dumping duty were brought to levy from the date the definitive anti-dumping duty was imposed. Member (Judicial) has further opined that the amending Notification had made its intention makin .....

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Import and Export Corporation and the second entry at Sr.No.23 covered the goods manufactured and exported by any other producer-exporter combination. In my opinion, given the complexion of the Notification the scope of the entry at Sr. No.23 was wide enough to cover all other combinations, including the ones where the manufacturers themselves exported the goods. Assuming for a moment that there was no amendment to the existing Notification. In that scenario could it be inferred that the goods m .....

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ti-dumping duty. It is pertinent to mention here that the Appellants had before the lower authorities, and also in the Appeal memo contended that their imports were not covered by entry under Sr. No.19, I am, in the absence of any indication that the name of Tianjin Dagu Chemical Co. was included at Column 8 of entry at Sr. No.19 effective from 23.01.2008, of the opinion that the import made by the Appellant was covered by Sr. No.23 till the amending notification was issued on 24.03.2008. 11.2 F .....

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ion itself. There is no scope for any intendments merely for the reason that it amended an existing entry. Such an interpretation is bound to upset the assessments made in accordance with the then existing provision of law or Notification. It is pertinent to mention here that the Appellants have been contending that no being covered by the anti-dumping duty Notification in question as (Sr. No.19 did not mention the name of Tianjin Dagu Chemical Co. and Sr. No.23 did not cover the exports made by .....

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y any legislation are subordinate legislation and the authority vested with powers to issue the same has the authority to make it operational retrospectively. But such an intention should emerge from the expressions used in the Notification itself. In the present case, there is nothing in the Notification to indicate that the changes would take effect from the date when definitive anti-dumping duty was initially imposed on the product imported by the Appellants. For want of such an express inten .....

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given retrospective effect. 13. Para 14 to 16 of the judgement are quoted for ready reference:- 14. It is, by now, well settled that the statutory amendments, either creating fresh liability hitherto no existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect. 15. In other words, it is a well established principle of construction that a statute inconsistent with substantive ri .....

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ld not be viewed as given retrospective operation to the liability. In case of Govinddas and Ors. v. The Income Tax Officer and Anr. - AIR 1977 Supreme Court 552, the Apex Court was considering provision of Section 171 of Income-tax Act, 1961, in which the Legislature under sub-section (6) provided that even when no claim of total or partial partition is made at the time of making assessment under Section 143 or 144 of the Act, if it is found after the completion of assessment that the family ha .....

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mily and thus was personal liability as distinguished from the liability limited to the joint family property received on partition. The Apex Court thereupon held and observed that : We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating of imposing a new obligation or liability, construe sub-section (6) of Section 171 as embracing a case where assessment of a Hindu undivided family is made under the p .....

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ily including the petitioners. 14. In view of above, I do not agree with the findings of learned Member (Judicial) and hold that classification of imported product will be rightly under Sr. No.23 under Notification dated 23.1.2008. However, after amendment of notification in column 8 of Sr. No.9 of notification dated 24.3.2008, classification will be under Sr. No.19 of notification dt.24.3.2008. ( Manmohan Singh) Technical Member Difference of Opinion Whether as per opinion of learned Member (Ju .....

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l) Member (Judicial) 15. Vide CESTAT Interim Order No. 941/2014, the following difference of opinion was expressed: Whether as per opinion of learned Member (Judicial), amending Notification No. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/2008-Cus dated 23.1.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty. OR Whether as per opinion of Member (Technical), amending Notification No. 38/200 .....

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iginating in or exported from Indonesia, Malaysia, Korea RP, Japan, USA, Thailand, China PR and Chinese Taipel. The said notification dated 14.2.2008, inter alia, stated that Sl. No. 19 of the final findings notified vide Notification dated 26th December 2007 shall be corrected as under :- S.No. Sub-Heading or Tariff Item Description of goods Specification Country of origin Country of Export Producer Exporter Duty Amount Unit of Measure Currency 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11 19 3904.21 Homop .....

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tion No. 38/2008-Cus. should apply retrospectively with effect from 23rd Jan. 2008 when Notification No. 11/2008-Cus. was issued. (iii) The corrigendum issued by DGAD would relate back to the original notification itself and cited the judgements in the cases of Jubilant Organosys Ltd. Vs. Asstt. Commr. of C. Ex., Mysore-III 2012 (276) ELT 335 (Kar.) and Polyplex Corp. Ltd. Vs. Union of India 2014 (306) ELT 377 (All.). (iv) Ld. Advocate agreed that anti-dumping duty is levied in terms of relevant .....

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nti-dumping duty is charged in terms of the customs notification issued in that regard and not in terms of the final findings of Directorate General of Anti-Dumping and Allied Duties (DGAD). Indeed the final findingsof DGAD does not levy any anti-dumping duty. It is for the Government to impose anti-dumping duty in the wake of and taking into account the final findingsof the DGAD and when the Central Govt. decides to impose anti-dumping duty, formal custom notification levying such duty is issue .....

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spective effect. For this purpose, it is useful to quote the said notifications. Notification No.11/2008-Cus dated 23.01.2008 whereas in the matter of import of Homopolymer of Vinyl chloride monomer (PVC) suspension grade (hereinafter referred to as the subject goods) falling under the sub-heading 3904 21 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the said Customs Tariff Act), originating in, or exported from, Taiwan, Peoples Republic of China, .....

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the exporting countries; (b) the domestic industry has suffered material injury and threat of injury exists; and (c) the injury has been caused to the domestic industry, both by volume and price effect of dumped imports of the subject goods originating in, or exported from, the subject countries; and has recommended the imposition of definitive anti-dumping duty on imports of the subject goods originating in, or exported from, the subject countries; Now, therefore, in exercise of the powers con .....

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st Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), the specification of which is specified in column (4) of the said Table, originating in the countries specified in the corresponding entry in column (5), and exported from the countries specified in the corresponding entry in column (6) and produced by the producers specified in the corresponding entry in column (7) and exported by the exporters specified in the corresponding entry in column (8) and .....

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. .. .. .. .. .. .. .... .. .. .. 19 3904.21 Homopolymer of vinyl chloride monomer (PVC) (suspension grade) Homopolymer of vinyl chloride monomer (suspension grade), where various polymer chains are not linked to each other, excluding the specially PVC suspnesion resins such as cross-linked PVC, Chlorinated PVC (CVPC), vinyl chloride-vinyl acetate copolymer (VC-VAC) PVC paste resin and PVC blending resin Peoples Republic of China Any Tianjin Dagu Chemical Company Ltd. Tianjin Bohai Chemical Indu .....

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India in the Ministry of Finance (Department of Revenue ) No. 11/2008-Customs dated the 23rd January, 2008, number G.s.R.52(E), dated the 23rd January, 2008 namely:- In the said notification, in the TABLE ..................... ................... (iii) against Sl. No. 19. (a) For the entry in column (7), the entry M/s Tianjin Dagu Chemical Company Limitedshall be substituted. (b) For the entry in column (8), the entry M/s Tianjin Dagu Chemical Company Limited or M/s Tianjin Bohai Chemical Indus .....

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d 24.03.2008 makes no reference to DGAD notification no.14.02.2008; indeed it does not give any such indication that it is issued in pursuance of the said corrigendum dated 14th Feb. 2008 and even if it was so, the applicability of the Customs notification will have to be interpreted from the wording used therein. As stated earlier Notification No. 38/2008-Cus. is a simple amending notification by virtue of which amendment was made to Notification No. 11/2008-Cus. It is well settled that a notif .....

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