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TMI Blog2002 (1) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ds that were imported prior to 14-11-95, the date of notification levying anti-dumping duty, but cleared ex-bond after 14-11-95. It has been held by the Lower Authority that in terms of Sec. 15(1)(b) of the Customs Act, 1962, the relevant date for levying duty on warehoused goods, is the date of ex-bond clearance of the warehoused goods. In the instant case, the goods imported from Japan prior to 14-11-95 were cleared ex-bond after 14-11-95 when anti-dumping duty was in force, in respect of the impugned goods. It is the case of the appellant on the other hand, that Section 15(1)(b) and Section 12 of the Customs Act, 1962, read with Section 2 of CTA, do not apply to anti-dumping duty which is not a duty of customs. According to the learned Counsel, duties of customs, in terms of Section 2 of CTA, are the duties that are specified in the First and the Second Schedule under the CTA. Section 12 of the Customs Act also refers to the duties of Customs only. He also referred to Customs Notification No. 159/95 whereunder the anti-dumping duty has been levied with effect from 14-11-95 in respect of Acrylonitile-butadiene rubber (NBR) when exported from Japan into India. According to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of Section 9A of the CTA, 1975. Thus, I do not find any justification in inferring or concluding that anti-dumping duty is not a duty of customs and therefore, shall not be covered by the provisions of Section 12 of the Customs Act, 1962. Incidentally, Section 15 of the Customs Act does not expressly refer to the duties of Customs, but only the rates of duty and Tariff valuation if any, applicable to any imported goods. As has already been pointed out above, Section 12 which is the charging section, does not confine the meaning of "duties of customs" to the rates of duties provided in the First and Second Schedules under the CTA, 1975, only. Hence, the contention of the learned Counsel that Sections 12 and 15(1)(b) of the Customs Act, 1962, were not applicable to anti-dumping duty, has no merits. It is, however, true that Section 2 of the CTA, 1975 refers only to the rates of duty as prescribed in the First and Second Schedules. Nevertheless, it is nobody's case that anti-dumping duty is not governed by the CTA, 1975. It has already been stated above that anti-dumping duty ought to be taken as duty of customs within the meaning of Section 12 of the Customs Act, 1962. It wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e called a taxing event. It is only relevant for the purpose of quantification of the tax leviable. I find considerable force in the above contention of the appellant. The goods became liable to duty when the taxing event takes place. The taxing event under Section 12 is the importation of the goods into India. Customs Notification No. 159/95 issued under sub-section (1) of Section 9A of CTA, 1975, also makes it clear that the taxing event was importation of the goods from Japan into India. The quantification of duty under Section 15 would arise only when the duty was leviable on the goods in terms of Section 12 of the Customs Act, 1962. Anti-dumping duty was leviable in terms of CN 159/95 with effect from 14-11-95 only, on the importation of the impugned goods from Japan into India. The goods were evidently imported prior to 14-11-95 when no anti-dumping duty was leviable. Hence, it is reasonable to think that Section 15 of the Customs Act, 1962, in such a case, shall not apply when the anti-dumping duty was not leviable at the point of importation of the goods. Thus, I am of the view that the order of the Lower Authority, is not maintainable and, hence, the same merits to be qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the instant case which are under importation and under assessment before entry into the country and not those goods which have already entered and are bonded. If that was the case, then the notification should have been given retrospective effect and as there is no such provision of retrospective effect in the notification, therefore the notification has the effect only prospectively on the imported goods from the date on which it is promulgated and therefore on a clear reading of the provisions of Anti-dumping Act, the order passed by the Commissioner (Appeals) is sustainable and requires to be upheld. He also took us through the relevant sub-section (8) of Section 9A of CTA which reads as follows :- "SECTION 9A. Anti-dumping duty on dumped articles. - (1) Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation - For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined - (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and (b) refund shall be made of so much of the anti-dumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. (3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that - (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House of Parliament. (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, relating to non-levy, short-levy, refunds and appeals shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." 5. He submits that this pertains to recovery of non-levy and short-levy and not with regard to fresh levy of Anti-dumping Act. He also relied on the judgment rendered in the case of Caprihans (India) Ltd. v. CC [2001 (129) E.L.T. 162 (Tri-LB)], a Larger Bench judgment which, according to him, clearly applies to the facts of this case and the issue is totally covered in his favour. He also relied on the judgment of NGEF Ltd. v. CCE [1998 (27) RLT 700], wherein it was held that special customs duty will not be leviable on the warehoused goods as it was imposed after importation of goods though before clearance for home consumption from the warehouse. He submitted that this judgment relied on the Apex Court judgment rendered in CCE v. Vazir Sultan Tobacco Ltd. (supra). 6. On a careful consideration of the submissions, and on a perusal of the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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