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TMI Blog2021 (9) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2006 was issued to the respondent covering five Bills of Entry under which the product 'Lutex -701' was imported namely: "(1) Bill of Entry No. 500271 dated 18.03.05; (2) BilI of Entry No. 500044 dated 03.05.05; (3) Bill of Entry No. 500110 dated 13.06.05; (4) Bill of Entry No. 500161 dated 1 7.08.05; and (5) Bill of entry No. 500162 dated 17.08.05." Another show cause notice F.No. ICD/Pimp-Chwd/SCN/204/06-07 dated 30.06.2006 dated 30 June 2006, covering six Bills of Entry' was issued to the respondent under which the product 'Lutex - 780' was imported. The details of the Bills of Entry are: "(1) Bill of Entry No. 500183 dated 26.08.05; (2) Bill of Entry No. 500034 dated 27.04.05; (3) Bill of Entry No. 500073 dated 24.05.05; (4) Bill of Entry No. 500109 dated 13.06.05; (5) Bill of Entry No. 500148 *dated 28.07.05; and (6) Bill of Entry No. 500128 dated 29.06.05." 4. The allegation in the Show Cause Notice dated 23 May 2006 is that the respondent mis-declared its goods as 'Lutex - 701' which on tests were found to be SBR of 1900 series on which anti-dumping duty was leviable. The notice proposed to confiscate the goods imported, collectively valued at Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of antidumping investigation at any stage." The second finding is as follows: "It may be stated that while issuing show-cause notice, learned adjudicating authority had not examined the classification based on the report of the Laboratory. The show-cause notice issued in 2006 was to finalise the assessment only, without any proposal to levy anti-dumping duty. There was no reference to the character and nature of the imported product also therein. The Notification No.100/2004-Cus dated 26.09.2004 does not intend to levy anti-dumping duty on the product imported by the appellant. Accordingly, the show cause notice having no basis, both the appeals are allowed." 8. The Commissioner of Customs, Pune is in appeal. 9. Before we deal with the submissions which have been urged on behalf of the contesting parties, it is necessary to preface this judgment with a reference to Notification 100/2004-Cus dated 28 September 2004. The Notification sets out that on 30 July 2003 the Designated Authority had initiated a sunset review in the matter of continuing anti-dumping duty on imports of SBR 1900 series falling under heading 3903 or 4002 of the First Schedule to the Customs Tariff Act 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 19 10 - Oil extended styrene butadiene rubber kg. 10% 4002 19 20 - Styrene butadiene rubber with styrene content exceeding 50% kg. 10% 4002 19 30 - Styrene butadiene styrene oil bound copolymer kg. 10% 10. The respondent contends that its goods were classified under CTH 40021100 and were provisionally cleared. The respondent submits that the assessment was finalized by the order of the Commissioner of Customs, levying anti-dumping duty without there being any proposal in the show cause notice for change in the classification. The Revenue contended that anti-dumping duty was imposed in terms of Notification No.100/04 - Customs dated 26 September 2004 and anti-dumping duty was correctly levied on the goods. 11. In the present proceedings, there is no dispute about the position that the product under consideration of the Designated Authority was SBR of 1500, 1700 and 1900 series falling under CTH 4002.19 of the Customs Tariff Act 1975 but not goods covered by the CTH 40021100. The Tribunal, as is evident from the two extracts of its decision which have been reproduced earlier came to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported by us, which exists in a liquid form, are widely used in the paper industry and known in common trade parlance as Latex. Unlike the former, SBR of the 1900 series is a dry polymer, which is incapable of existing in a liquid form. Unlike Latex, SBR of 1900 series has wide application in the footwear industry and in the manufacture of "V" Belts. Thus the two products are completely different in their physical state or applicability though there are certain common chemicals in their chemical composition." (ii) Moreover, according to the respondent, in its reply: "3.8 Latex and SBR of 1900 are two separate products- As mentioned above, the product imported by us is "Styrene Butadine Co-polymer". The goods imported by us, which exists in a liquid form, are widely used in the paper industry and known in common trade parlance as Latex. Kindly note that, SBR of the 1900 series is a dry polymer, which is incapable of existing in a liquid form. Unlike Latex, SBR of 1900 series has wide *application in the footwear industry and in the manufacture of "V" Belts." In other words, while SBR of the 1900 series is a dry polymer, the goods imported by the respondent were in a liquid fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well aware of the description of the goods imported and the duty liability thereon. Therefore it appeared that the Importer mis declared the description of the goods as TUTEX 701 instead of as Styrene Butadiene Rubber (SBR) of 1900 Series with the intention to evade the Anti Dumping Duty. At the time of filing of Dills of Entry, the Importer did not come up with full a.id complete description of the goods imported. If the Importer had declared the complete and proper description of the. goods at the time of filing of Bills of Entry, the Anti Dumping duty would have been levied at the time of provisional assessment. Therefore it appears to be a case of suppression of facts on the part of the Importer by not declaring proper description of the goods and mis declaring the description of the goods as 'LUTEX-701' against proper description as 4 Styrene Butadiene Rubber (SBR) of 1900 Series. As importer is an actual user of the goods ii question and was aware of the Anti Dumping duty notification no: 100/2004 issued on 28.09.2004 at the time of filing of import documents, it appears that the importer willfully did not declare the proper and complete description of the goods in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66.75% respectively for Lutex 701 and Lutex 780." In this background, the Commissioner held: "6.5 Thus, It may be seen that when the said Importer got the Impugned goods tested on his own from the same laboratory where the department had sent the goods for ascertaining the Styrene content, in the imported Lutex 701 and Lutex 780, the styrene content was reported to be above, 60%." None of the above findings have been displaced in the order of the Tribunal. The Tribunal has not looked into the merits of the appeals at all on the facetious ground that the show cause notice did not contain any basis to doubt the classification of the goods and that while issuing the notice, the adjudicating authority had not examined the classification based on the report of the laboratory. The findings of the Tribunal are contrary to the record and cannot therefore be sustained. 17. At the same time, since the Tribunal has not considered the case of the respondent in appeal on merits, we are of the considered view that it would be appropriate to restore the proceedings back to the Tribunal for the purpose. In order to facilitate a fresh decision on remand, we have recorded the broad submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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