ORDER
V.K. Agrawal, Member (T)
1. M/s. Supreme Woollen Mills Ltd. and Shri Sanjay Gupta have filed these Appeals against Order-in-Original No. 160/2002, dated 19-8-2002 by which the Commissioner of Customs has confirmed the Anti-dumping duty in terms of Notification No. 81/97-Cus., dated 24-10-97; confiscated the goods with consequential redemption fine and imposed penalties under Sections 114A and 112(a) of the Customs Act.
2. Shri R. Parthasarthy, learned Advocate, submitted that M/s. Supreme Woollen Mills Ltd., a joint sector company with Punjab State Industrial Development Corporation (PSIDC); imported acrylic fibre from M/s. Flotec Co. Ltd., Taiwan and filed two Bills of Entry both dated 24-12-98 for manufacturing acrylic and synthetic yarn; that they declared the Country of Origin as Taiwan in accordance with the Certificate of Origin that accompanied the consignment and which was issued by the General Chamber of Commerce of Taiwan; that, however, investigation conducted by the Revenue concluded that the impugned goods were of Thailand origin and the original Bills of lading was exchanged with 6 switch bills of lading issued by N.Y.K. Taiwan, the shipper, showing the port of loading as keeling, Taiwan whereas the original Bills of lading clearly showed the place of loading as Bangkok; that a show cause notice dated 5-11-99 was issued, covering not only the said two consignments, but also four other Bills of Entry dated between 17-7-98 and 14-12-98; which has culminated in the impugned order.
3.1 The learned Advocate, further, submitted that though they are not disputing the country of origin of goods being Thailand, they had not misdeclared the country of origin; that they had declared the country of origin in terms of the Certificate of Origin issued by the Taiwan Chamber of Commerce; that they can not also be said to have colluded with the exporter in the alleged misdeclaration; that the General Chamber of Commerce of the Republic of China had confirmed that the Certificates of Origin were issued by them and were authentic; they were, therefore, correct in their bona fide belief that the goods were of Taiwanese origin; that even the three telex messages relied upon by the Revenue do not refer to the Appellants as the party at whose instance the new bills of lading were issued; that all these telexes are correspondence exchanged between the Bangkok and Taiwan office of the shipping link NYK; that the fax message dated 22-1-99 to the effect that the split Bills of Lading were issued to meet the Appellants’ requirement, is after the filing of bill of entry by them on 24-12-98 and recording the statement dated 5-1-99 of the officials of NYK; that this Fax message has been issued by Flotec Co. Ltd. more to cover up their wrong doing. He also pointed out that both the goods would have cost them almost the same as the price of Taiwan origin goods is more than goods of Thailand origin which would have subjected to additional duty (Anti Dumping duty); that as such there is no financial gain and therefore, the question of misdeclaration does not arise; He, further contended that provisions of Section 111(m) of the Customs Act are not applicable as the country of origin was specified by them in Bill of Entry with reference to the Certificate of Origin that accompanied the consignment; that Proviso to Section 28 of the Customs Act is not invocable as there is no wilful misstatement or collusion on their part; that they had demonstrated that they had no role in determining the country of origin of the goods; that similarly provisions of Sections 114A and 28AB are not invocable.
3.2 Finally, the learned Counsel submitted that the levy of antidumping duty is governed by Section 9A of the Customs Tariff Act; that Sub-section (8) was inserted in Section 9A by the Finance Act, 2000 with effect from 12-5-2000; that prior to this amendment, there was no provision under Section 9A for even recovery of anti-dumping duty leave alone there being a provision for collection of anti-dumping duty that has not been levied/short levied; that thus there was no machinery provision for the assessment and collection of antidumping duty; that further Section 9A(8) of the Customs Tariff Act does not borrow provisions relating to confiscation and penalty as it only provides that the provisions relating to non-levy, short-levy, refunds and appeal shall apply to anti-dumping duty as they apply to duties leviable under the Customs Act; that therefore provisions under Section 111(m) for confiscation and penalty under Section 112/114A are not applicable to anti-dumping duty matters: Reliance has been placed on the decision in the case of Pioneer Silk Mills Pvt. Ltd. v. Union of India, 1995 (80) E.L.T. 507 (Del.) which has been affirmed by the Supreme Court as reported in 2002 (145) E.L.T. A74. Reliance has also been placed on the decision in Tarsem Singh Multani & Sons v. C.C., Amritsar, 2001 (134) E.L.T. 753 (T).
4. Countering the arguments, Shri K.M. Mandal, learned Advocate for Revenue, submitted that it has not been disputed by the Appellants that goods are of Thailand origin; that anti-dumping duty @ Rs. 9.73 per Kg. has been imposed on acrylic fibre originated from Thailand; that as such there was a liability on the Appellants, being importer to discharge the duty liability; that the liability to duty does not get extinguished even if there is no provision to recover the same; that once the duty has been paid by the Appellants, it cannot be claimed back as their liability to pay the duty was always there. In this regard, the learned Advocate referred to the provisions of Rule 18 and Rule 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (Rules 1995 in short) which empowers the Central Government to impose by Notification antidumping duty; that in exercise of the powers conferred by these Rules read with Section 9A(1) of the Customs Tariff Act, Notification No. 81/97-Cus., dated 24-10-97, as amended has been issued by the Central Government imposing Antidumping duty in respect of acrylic fibre. He also mentioned that Section 12 of the Customs Act covers Anti-dumping duty also which is levied at a rate specified under the Customs Tariff Act, 1975; that accordingly all the provisions of Customs Act including the provisions relating to penalty and confiscation are applicable to duties levied under the Customs Tariff Act; that insertion of Sub-section (8) in Section 9A of the Customs Tariff Act does not alter the situation as the said insertion is by way of abundant precaution. He finally submitted that redemption fine is imposable even after the release of the goods as held by the Supreme Court in Weston Components Ltd. v. Commissioner of Customs, New Delhi, 2000 (115) E.L.T. 278 (Supreme Court); that the Supreme Court has held that “if subsequently it is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods, then the mere fact that the goods were released on the bond being executed, would not take away the power of the customs authorities to levy redemption fine.”
5. We have considered the submissions of both the sides. Section 9A of the Customs Tariff Act empowers the Central Government to impose an antidumping duty not exceeding the margin of dumping if any article is exported from any country or territory to India at less than its normal value. Rules 18 and 20 of Rules, 1995 also empowers the Central Government to impose by Notification anti-dumping duty. Notification No. 61/97-Cus., imposes an anti-dumping duty on acrylic fibre originated from Thailand. As it is not in dispute that the impugned acrylic fibre, imported by the Appellants, has originated from Thailand, the anti-dumping duty @ specified in the Notification is payable by the Appellants. The Appellants had deposited the duty during the course of investigation itself. We find substantial force in the contention of the learned Advocate for the Revenue that once the duty legally payable by them has been paid, the question as to whether there was any provision in the Act at the relevant time for demanding the duty or not is irrelevant. As the duty, which is legally payable by them, stands paid by the importer, we do not go into the question as to whether the show cause notice could have been issued by the Revenue in 1999 for demanding the anti-dumping duty.
6. The Anti-dumping duty is imposed under the provisions of Section 9A of the Customs Act. It has been held by the Larger Bench of the Tribunal in the case of Caprihans India Ltd. v. Commissioner of Customs, Bombay, 2001 (129) E.L.T. 162 (T – LB) that “Anti-Dumping duty levied under Section 9A of the Customs Tariff Act can not be considered as duty realised under Customs Act, 1962. Special provisions have been made under Section 9A for the imposition of duty known as Anti-Dumping Duty.” The Larger Bench came to the conclusion in that case that the provisions of Section 27 of the Customs Act do not apply to refund of antidumping duty. The learned Advocate has referred to the decision of the Tribunal in the case of D.C.W. Ltd. v. CC, Tricky in. which the Tribunal, following the decision of the Larger Bench in Caprihans case, had allowed the Appeal vide Final Order No. 118/2002 (Chennai), dated 30-1-2002 [2002 (147) E.L.T. 1003 (T)] and the Appeal filed by Revenue has been dismissed by the Supreme Court on 27-1-2003, after condoning the delay in Civil Appeal No. 5604/2002 [2003 (157) E.L.T. A80 (S.C.)]. Accordingly the provisions of Sections 111, 112 and 114A of the Customs Act were not applicable when the show cause notice dated 5-11-99 was issued to the Appellants. The learned Advocate for the Appellants has even contended that even after insertion of Sub-section (8) in Section 9A of the Customs Tariff Act, in May, 2000, these provisions are not applicable in view of the decision of the Delhi High Court in Pioneer Silk Mills case, affirmed by the Supreme Court. We find force in the submission of the learned Advocate as Sub-section (8) reads as under :
“(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.”
7. The Delhi High Court in Pioneer Silk Mills case observed that Chapter II of the Central Excise Act dealing with levy of duty contains provisions of offences and penalty and all the Sections can hardly be said to be related to levy and collection of duty of Excise and as such would not be entirely applicable in respect of Additional Duties of Excise (Goods of Special Importance) Act, 1957. Following the said decision, we hold that provisions relating to confiscation and Penalties contained in Customs Act are not applicable in respect of Antidumping duty and accordingly we set aside the confiscation and consequential redemption fine and penalties imposed on both the Appellants.
8. Both the Appeals stand disposed of in the above manner.