TMI Blog2020 (2) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government has imposed Anti-dumping Duty on provisional basis and at the time of finalization if the Anti-dumping Duty is fixed on the higher side then the differential duty shall not be collected from the importer. In the present case though as per provisional Notification No. 106/2006-Cus the lower Anti-dumping Duty was imposed and by final Notification No. 88/2007-Customs, the rate of Anti-dumping Duty was higher, the provisional Anti-dumping Duty was very much considered in the Bills of Entry filed by the appellant and since the price declared by the appellant in the Bill of Entry was not lower than the Anti-dumping value the Anti-dumping Duty shown in the Bills of Entry is nil . In this case it is very clear that at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Respondent ORDER The brief facts of the case are that the appellant have imported New Tyres, Tubes and Flaps of Chinese origin. The value declared in the Bill of Entry came to USD 97.79 per set. The Central Government issued a Notification No. 106/2006-Cus, dated 09.10.2006 whereby Anti-dumping Duty was imposed on Tyres/Tubes/flaps, originating in, or exported from, people s Republic of China and Thiland. In the Bills of Entry at the time of assessment, Anti-dumping Duty was also considered, however, since there was no difference between the rate of Anti-dumping Duty and the value declared by the appellant, the Anti-dumping Duty in the Bill of Entry was mentioned as nil . Subsequently the Anti-dumping Duty was finalized vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-dumping duty, the nil duty was assessed. Therefore, it cannot be said that there was no provisional levy of duty and collection thereof. Therefore, the Rule 21 (1) is clearly applicable in the present case. He placed reliance on the following judgments:- G M Export-2015 (324)ELT 209 (S.C) Merchem Ltd-2014 (5) TMI 523-CESTAT Bangalore 3. Shri. Vinod Lukose, Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the finding of the impugned order. He submits that since the appellant did not pay any Anti-dumping duty at the time of Bill of Entry Assessment there was no collection of duty hence, Rule 21 (1) is not applicable. The said Rule is applicable only in the case when on the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 21. Refund of duty . - (1) If the anti-dumping duty imposed by the Central Government on the basis of the final findings of the investigation conducted by the designated authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. (2) If, the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. (3) If the provisional duty imposed by the Central Government is withdrawn in accordance with the provisions of sub-rule (4) of rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferential Anti-dumping Duty as per the Final Notification cannot be demanded. Somewhat similar issue has been considered by the Hon ble Supreme Court in the case of G M Export (Supra) wherein the Hon ble Supreme Court observed as under:- 45. Rule 21(1) also answers the contention of the revenue that the object of anti-dumping laws would be defeated if it were found that dumping and material injury having been found, yet no anti-dumping duty can be levied. By application of this Rule, it is clear that for the period that the provisional duty notification is in force, the difference of ₹ 50% in the example just given, cannot be collected from the importer despite ₹ 50% having been imposed because of dumping and material injur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of provisional anti-dumping duty i.e. 5-5-2008. The contention of applicant is that during the import the anti-dumping duty as per the notification was nil . Hence demand is not sustainable. Applicant relied upon provisions of Rule 21 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 to submit that if there is an increase of anti-dumping duty on the basis of final findings and in respect of the goods imported duty already imposed and collected, the differential is not leviable. Hence the demand is not sustainable. 3. Revenue reiterates the findings of the lower authority. 4. We find as per the Rule 21 of Anti-dumping Rules, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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