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J.P. Overseas Ltd. Versus CC, ICD, New Delhi

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

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 fall under Sl.No.23 of the said Notification being any exporter as envisaged by t .....

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uct 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, classification will be under Sr. No.19 of notification dt.24.3.2008. - Majority decis .....

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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 Notification No.11/2008-Cus dated 23.1.2009 of the Ministry of Finance for levying def .....

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turer 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.19 and 23 of the Notification dated 23.1.2008 are extracted below:- S.No. Sub He .....

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mping 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 the Notification dated 23.1.2008 by an amending notification dated 24.3.2008. Acco .....

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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 manufacturer, M/s. Tianjin Dagu Chemicals Co. Ltd. to column No.8 of the original Notificati .....

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umping 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. The amendment was thus made to protect interest of Revenue prescribing trade rem .....

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w 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-dumping duty prescribed in column No.9 of the Notification against Sl.No.19 there .....

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ntry 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 Co. Limited under Bill of Entry dated 24.01.2008. The PVC resin so imported by th .....

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vered 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 under Sr. No.23 on the ground that the Appellants would be covered under Any oth .....

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mber (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 making clear that apart from the exporter specified in column 8 of Sr.No.19 if the pro .....

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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 manufactured and exported by Tianjin Dagu Chemical Co. would not have attracted an .....

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he 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 Further, I would like to mention that the amending Notification is not a corrigend .....

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mended 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 manufacturer-exporter) they were not liable to pay any anti-dumping duty. Later .....

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s 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 intention in the Notification, it is difficult for me to accept the proposition that t .....

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dy 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 rights is prima facie considered prospective unless it is expressly or by necessary .....

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vinddas 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 has already effected as partition, total or partial, all the members shall be joint .....

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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 provisions of the old Act. Here in the present case, the assessments of the Hindu .....

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ings 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 (Judicial), amending notification no.38/2008-Cus dated 24.3.2008 making amendment in .....

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fference 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. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/ .....

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, 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 Homopolymer of vinyl chloride monomer (PVC) (suspension grade) See Footnote China PR A .....

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8 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 Customs notifications. 17. The ld. DR, on the other hand, pleaded that anti-dump .....

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egard 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 issued and only with the issuance of such Customs notification imposing anti-dumping d .....

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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, Indonesia, Japan, Korea RP, Malaysia, Thailand and USA (hereinafter referred to .....

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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 conferred by sub-section (1) and (5) of section 9A of the Customs Tariff Act, 1975 ( .....

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y 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 imported into India, an anti-dumping duty at the rate equal to the amount indica .....

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r (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 Industries Imp & Exp Corporation 1047 MT Rs. Notification No. 38/2008-Cus. dated .....

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ted 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 Industries Imp. & Exp. Corporationshall be substituted. It is evident that notific .....

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s 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 notification always has prospective effect unless a contrary intention is evident from .....

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