TMI Blog2002 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... vide customs Notification No. 32/99, dated 11-3-99 giving retrospective effect from 8-10-98. Therefore, the appellants filed the refund claim seeking refund of excess duty in terms of Section 9A(2)(b) of Customs Tariff Act, 1975. The AC of Customs (Refunds), Tuticorin by OIO No. 17/99-AC, dated 18-6-99 considered their claim and allowed the same by granting refund of Rs. 9,84,144/-. The department was aggrieved with the said order and filed an appeal before the Commissioner (Appeals), Trichy. Appellants also filed their cross appeal. By Order-in-Appeal No. 42/2001, dated 8-6-2001, the Commissioner (Appeals) allowed the appeal solely on the ground that the rate of duty is to be applied as fixed under the Notification No. 71/98, dated 8-10-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Caprihans India Ltd. v. CC, Bombay (supra) has taken a view that Section 9A(2)(b) of Customs Tariff Act, 1975 is independent of Sec. 27 of the Customs Act and that the said judgment has been followed by this Bench in the case of Suja Rubber Industries Pvt. Ltd. (supra), however, the department would like to reiterate their view and matter being taken up before the Apex Court for further consideration. He therefore seeks for recording the departmental view. 4. On a careful consideration of the submissions, we notice that the Larger Bench in the case of Caprihans India Ltd. v. CC, Bombay (supra) has clearly laid down that refund of customs duty depends on the change in the provisional and final imposition of duty in terms of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that anti-dumping duty on the said item could be imposed, when exported from Japan into India and it could impose on the said goods when exported from Japan into India, an additional duty at the rate of nineteen thousand three hundred and six rupees per metric tonne. A reading of this portion of the notification clearly indicates that "when goods are exported from Japan and on reaching Indian soil should be determined and additional duty be imposed". In the present case goods have already been imported and warehoused. Had it not been warehoused then, they would have been cleared much earlier without imposition of anti-dumping duty, it is not the case of the Revenue that all clearances which have been made for home consumption even thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst issue the refund claim is on the ground that the provisional anti-dumping duty on Calcium Carbide which was fixed at Rs. 1047 PMT for imports from China by virtue of Notification No. 71/98-Cus., dt. 8-10-98 was finalised and the same was reduced to Rs. 499/- PMT by virtue of Notification No. 32/99-Cus., dated 11-3-99. The Notification No. 32/99 itself clearly states that anti-dumping duty imposed under the notification shall be levied with effect from the date of imposition of provisional duty i.e. 8th October 1998. Hence, it is clear that the anti-dumping duty leviable on import of Calcium Carbide from China is at Rs. 499/- PMT from the date of imposition of anti-dumping duty i.e. 8-10-98. Accordingly, the importers are eligible for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(b) will not come into play at all to apply a rate of duty." If the ratio of the above decision is applied the incidence of duty should be at both the stages first at the time of import and second at the time of removal from warehouse. If the incidence of duty is not applicable in any one of the stages the same cannot be levied. In the instant case the applicability of anti-dumping duty was not there when the goods were originally imported and kept in the warehouse. The incidence of duty arose only at the time of removal of the goods from warehouse. If the decision of the Hon'ble CEGAT is applied the impugned goods does not attract levy of anti-dumping duty. Accordingly, the Importers are eligible for the refund of anti-dumping duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove view is supported by the following decisions of the Hon'ble Tribunal : (1) Karnataka Antibiotics and Pharmaceuticals Ltd. v. C.C.Ex., Bangalore reported in 1991 (83) E.L.T. 114 (Tribunal) (2) Collector of Central Excise, Chandigarh v. Metro Tyres Ltd., reported in 1995 (80) E.L.T. 410 (Tribunal) ORDER In view of the above findings, I order refund of Rs. 9,84,144/- to the importers M/s. DCW Ltd., Sahupuram." 6. We find that the findings given in the order-in-original is in keeping with the law laid down by the Larger Bench in the case of Caprihans India Ltd. (supra) followed by this Bench in the case of CC, Chennai v. Suja Rubber Industries. Respectfully following the ratio already laid down, the order-in-original r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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