9911796707
Advanced Search 
TMI Blog2004 (8) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme under DEEC Scheme. For the purpose of export of finished products viz. Chloro Hydroxy Quinoline 60% and Halquinol BPC they have imported 8 Hydroxy Quinoline 98% from China on six occasions under seven Bills of Entry during the period from 30-12-1996 to 5/1997. The final products were exported between the period 15-11-1996 & 19-6-1997 and the obligations under the QBAL was fulfilled. Show cause notices were however issued by the Assistant Commissioner proposing to demand anti dumping duty in terms of Notification No. 80/96-Cus. dated 16-10-1996 and the Asstt. Commissioner passed the order confirming the anti-dumping duty under six different orders-in-original and on appeal before the Commissioner (Appeals), the Commissioner confirmed the duty demanded in respect of six Bills of Entry and allowed duty exemption in respect of one import under Bill of Entry No. 10942, dated 30-4-97 which was made after issue of Notification 41/97, with direction to re-work out the quantum of duty and also to consider the prayer of the party for the draw back. The appellants have come in appeal against the order in Appeal on the following grounds : (1) P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd makes it clear that all imports will be duty free if imported on the basis of Quantity Based Advance Licence. He has pleaded that the goods imported are meant for manufacture of the final product and they have exported the final product and have followed the input-output ratio and no domestic sales have been effected and hence no injury has been caused to the domestic industry. He has also pleaded that Paras 47 & 48 of the Chapter VII dealing with Duty Exemption Scheme become redundant if exemption of duty is not allowed to the importation in question. He has also invited our attention to the judgment in the following cases : (1) Hon'ble High Court of Calcutta in the matter of Suttons & Sons (India) Pvt. Ltd. v. UOI reported in 1995 (75) E.L.T. 229 (Calcutta) wherein it was held that in case of inconsistency between two statutory notifications, they should be harmoniously construed. (2) AIR 1958 SC 255, in the case of Venkataramana Devaru and others v. State of Mysore regarding rule of harmonious construction when there are two provisions in one enactment. (3) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al submissions and gone through the case records and the various Notification noted above and also the provisions of the Policy as well as Section 9A of the Customs Tariff Act. We observe that in the instant case, the importation was made during the period between 31-12-96 and 25-2-97 and are therefore covered by the EXIM Policy for the year 1992-1997. The learned Counsel for the appellants heavily relied upon Para 47 and 48 under heading "Duty Exemption Scheme" under Chapter VIII of the Import Policy in question. No doubt Para 48 clearly states that import against advance licence will be duty free. In the instant case, the question posed before us is whether anti-dumping has been rightly levied in respect of the input/raw material Viz. 8 Hydroxy Quionoline 98% (98 - HQ for short) imported by the appellants for manufacture of the final product Viz. Animal Feed and Veterinary drugs. By Notification No. 80/96, dated 16-10-96, the Central Govt. has levied anti-dumping duty on 8 HQ. Levy of duty on 8 HQ was confirmed based on final enquiry by the Central Govt. by issue of Notification No. 27/97, dated 1-4-97. This Notification was issued on the final finding arrived at by the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to impose anti-dumping duty on which duty shall be in addition to any other duty imposed under the said Act. Rule 13 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, issued by the Central Govt. in exercise of the powers conferred by sub-section (6) of Section 9A and sub-section 9B of the said Act, provided for imposition of levy of provisional anti-dumping duty based on the preliminary findings. It would therefore, be seen that the Central Govt. has the mandate for imposition of anti-dumping duty based on preliminary findings and it was backed by this mandate based on inquiry, that it had issued Notification No. 27/97, dated 1-4-97 and this Notification was rescinded with effect from 22-1-2001 with a clause to the effect that "except as respects things done or omitted to be done before such rescission". Therefore, imposition of anti-dumping duty on the goods imported by the appellants for the period from 31-12-96 to 25-2-97 covered by the six Bills of Entry is in order. The learned Counsel has cited various decisions as noted above in support of his plea regarding need for harmon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s backed by Section 9A the Customs Tariff Act, 1975 and the rules made there under. When it was found on further enquiry that the imposition of such duty was no longer required, it allowed duty free import with certain conditions as noted above. EXIM Policy is a general policy issued by the Govt. and in terms of Para 48, import against advance licence is permitted without payment of basic Customs duty only and not anti-dumping duty. The said Para 48 is reproduced below for convenience of reference. Advance Licence 48. - An Advance Licence is granted for the import of inputs without payment of basic customs duty. Such licence shall be issued in accordance with the policy and procedure in force on the date of issue of the licence and shall be subject to the fulfilment of a time-bound export obligation and value addition as may be specified. Advance Licences may be either value based or quantity based. Licences issued under the Duty Exemption Scheme shall be regulated in freely convertible currency. The FOB value of exports and CIF value of imports in the licences shall be specified in freely convertible currency. The CIF value shall also be specified in bracket in Indian Rupees at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 27 of the Customs Act. A special provision contained in Section 9A regarding levy, collection and refunds of anti-dumping duty depending on the change in the provisional and final imposition of duty do not fall within the purview of the provisions contained in Section 27 of the Customs Act. Contrary views taken by the authorities below are clearly illegal and untenable. In view of the above, we do not find any conflicting provisions involved while imposing anti-dumping duty inasmuch as anti-dumping duty has been levied under the special provisions contained in Section 9A(2) of the Customs Tariff Act, 1975 which is a separate enactment and the two enactments deal with separate nature of duties. In view of the above, the plea of the learned Sr. Counsel that imposing anti-dumping duty on the goods makes Paras 47 and 48 of the EXIM Policy redundant, has no force. We also note that in the case of one Bill of Entry No. 10942, dated 30-4-97 the lower appellate authority has allowed the benefit since the appellants had cleared the goods in May 1997 by which time the Exemption Notification No. 41/97 has come into force. In view of our discussion and findings as above, we are of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reasons given in his order". OR "Whether the appeals are required to be allowed as held by Member (Judicial) for the reasons given in his order". Sd/- (Jeet Ram Kait) Member (T) Sd/- (S.L. Peeran) Member (J) 10.[Order per : C.N.B. Nair, Member (T)]. - I have heard the above difference of opinion at Madras on 11-2-2004. At the request of the learned Counsel for the appellant, the matter was adjourned to 5-3-2004 for further hearing at Delhi. By a letter dated 2-3-2004, learned Counsel for the appellant sought adjournment of the case to 19th March 2004. The request for adjournment was also mentioned on 5-3-2004 by the Counsel Shri V. Swaminathan. He was informed that further adjournment was not convenient and the appellant's Counsel may file written submissions before 11-3-2004. Pursuant to this written submissions dated 11-3-2004 have been received by fax. 11.The reference made to the third Member is whether the appeals are required to be dismissed or allowed for the reasons mentioned in the separate orders recorded by the Members who constituted the Division Bench. During the hearing on 11-2-2004, learned Senior Counsel representing the appellant pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 80/96-Cus., dated 16-10-96 on the subject goods. Subsequently Notification No. 27/97, dated 1-4-1997 confirmed the duty based on final findings. Therefore, the period of validity of that notification is covered by sub-section 5. In this legal position, I am of the opinion that the view taken by learned Member (Judicial) about the effect of Notification No. 5/2001-Cus., dated 21-1-2001 is not legally correct. The withdrawal of the anti dumping duty w.e.f. 22-1-2001 in no way affected the levy and collection of anti dumping duty under Notification No. 27/97 dated 1-4-1997. Similarly, any duty not or short recovered during the validity of that notification should also be recoverable. 14.During the hearing before me and in the written submissions, the learned Counsel for the appellants has stressed that the appeal cannot be disposed of without considering the other points raised by the appellants, like imports under Advance Licence (for export production) being exempt from duty and the case being revenue neutral inasmuch as the appellant would be entitled to drawback of anti dumping duty. The appellant has already filed an ROM application on this issue. That ROM appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
