JUDGMENT
S.L. Peeran, Member (J)
1. This Revenue appeal arises from Order-in-Appeal No. C3/31/96, dated 24-1-96 by which the Commissioner (Appeals) has held that anti-dumping duty confirmed by the original authority in terms of Notification No. 159/95, w.e.f. 14-11-95 is not applicable to the goods which had been bonded by the importer in view of matter being covered by the Larger Bench judgment rendered in Vazir Sultan Tobacco Co. Ltd. v. CCE [1985 (21) E.L.T. 757] which has been affirmed by the Hon’ble Apex Court. The findings recorded by the Id. Commissioner in the order impugned is extracted herein below :-
FINDINGS
I have carefully considered the written and oral submissions made by the appellant through their Counsel.
The short question that arises for determination in this case is whether anti-dumping duty under Section 9A of the CTA was leviable on the goods that were imported prior to 14-11-95, the date of notification levying antidumping duty, but cleared ex-bond after 14-11-95.
It has been held by the Lower Authority that in terms of Section 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 learned Counsel, the taxing event should be taken in this case as the importation of these goods into India, originating from Japan and as such the relevant dale shall be the date of import and not the date of ex-bond clearance under Section 15(1)(b) of the Customs Act, 1962, on the date of import, the anti-dumping duty was not leviable and therefore, the said duty was not chargeable on a later date in this case. He has also referred to the Larger Bench decision in the matter of Vazir Sultan Tobacco Co. Ltd. v. Collector of Central Excise vide [1985 (21) E.L.T. 757] in support.
In sum and substance, it is the case of the appellant that duties of Customs do not include anti-dumping duty which is governed by Section 9A of the CTA 1975, and not by the provisions of the Customs Act, 1962.
The word “duty” has been defined in Sub-section (15) of Section 2 of the Customs Act, 1962, as “a duty of customs leviable under this Act”. Section 12(1) of Customs Act which is the charging section, reads as under :-
“Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rate as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into or exported from India”.
It would, thus, be evident from the above that the duties shall be levied at such rate as may be specified under the CTA, 1975 or any other law for the
time being in force, on the goods imported into or exported from India. The words of the above charging section make it evident that the duties of customs on imported goods shall be levied at the rates as may be specified either under the CTA, 1975 or under any other law for the time being in force. It is, thus, not necessary that the rates of duties of customs ought to be charged under the CTA only. Obviously, therefore, the contention that the rates specified in other than the First and Second Schedules under CTA, 1975, would not pertain to duties of customs, is not valid. Section 12 specifically provides that duties of customs shall be levied at the rates specified not only under CTA, 1975 but also under any other law for the time being in force. In any case, anti-dumping duty is levied under the provisions of the CTA, 1975 only, and the quantum of anti-dumping duty is specified by notification issued under Sub-section (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 will also be pertinent to mention in this regard that Section 12 mentions “duties of customs” and not just ‘duty of customs’. Obviously, there is warrant to think that various types of duties of customs are leviable on imported goods, either under the Customs Act or under the Customs Tariff Act or under any other law for the time being in force. Basic customs duty is one type, additional duty under Section 3, is another and anti-dumping duty is yet another type.
Now reverting to the main issue as to whether anti-dumping duty, in the instant case, was leviable on the impugned goods notwithstanding the fact that the goods were imported prior to the date of Notification No. 159/95 the learned Counsel has referred to the Larger Bench decision of the Tribunal in the case of Vazir Sultan Tobacco Co. Ltd. v. Collector of Central Excise vide [1985 (21) E.L.T. 757]. In Para 39 of the above said judgment, the Hon’ble Tribunal held that SED was a separate levy, even though it may also be a duty of excise.
“Seen in this light, the conclusion has to be that the goods were not liable to the relevant excise duty at the time of manufacture and therefore, they could not be charged to the duty at the time of removal. We must therefore, with the greatest respect to our learned Brothers who passed the majority order in the case of Sirpur Paper Mills Ltd. and Hindustan Petroleum Corporation Ltd. differ from the conclusion arrived at by them”.
In Para 40, the Larger Bench observed as follows :-
“We would like to make it clear that the conclusion we have arrived at in this case is applicable where the duty in question has not been imposed (or had been exempted) at the time of manufacture. Our conclusion would not apply to a case where the duty was leviable at the time of manufacture and where Rule 9A would come into play (as in the Shaw Wallace case”.
According to the learned Counsel, the ratio of the above judgment of the Larger Bench of CEGAT was squarely applicable in this case also. At the material time of import, the anti-dumping duty was not leviable. On a later date, at the time of removal of the goods from the Bond, the anti-dumping duty was imposed. Since at the point of import, the anti-dumping duty was not leviable, it is contended that the said duty was not leviable at the time of removal of the goods from the Bond, because removal of the goods from the Bond cannot be called a taxing event. It is only relevant for the purpose of qualification 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. Antidumping 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 quashed.
2. Revenue is aggrieved with this order and contend that rate of duty should be the rate as on the date on which Section 15(1)(b) is applicable to warehouse goods and the date on which the goods are actually removed from the warehouse. It is stated that in the instant case anti-dumping duty was levied on the goods since ex-bond clearance took place after 14-11-95. Revenue disagrees with importer’s contention that since the goods were imported and bonded prior to 14-11-95, the goods are not chargeable to antidumping duty. It is stated that anti-dumping duty was levied in terms of Section 9A of Customs Tariff Act read with cited notification. Hence, it is also a duty of customs. Subject goods were chargeable to basic and additional customs duties under Sections 2 and 3 of the Customs Tariff Act, 1975. The rate of duty has to be applied in terms of Section 15(b) of the Customs Act, 1962, according to which, the date of removal from the warehouse is the taxing point. In this regard, support is taken on the judgment in the case of GOI v. Jai Hind Mills Ltd. & Ors. [1981 (8) E.L.T. 370] and that of Impex v. CC, Bombay [1987 (29) E.L.T. 433 (T)] which lays down the proposition that rate of duty will be the rate on which the goods are removed from the warehouse. Therefore, Revenue seeks for setting aside the impugned order of Commissioner (Appeals) and for upholding the order of the original authority imposing anti-dumping duty on the goods imported from Japan in terms of notification issued on 14-11-95 in respect of goods which were removed ex-bond from the warehouse.
3. We have heard Shri Jayachandran, Id. DR for the Revenue who
reiterated the above said grounds and sought for confirmation of Order-in-Original by allowing the Revenue appeal.
4. On the other hand Id. Counsel Shri V. Balasubramanian defends the order and took us through various provisions of the Customs Tariff Act, more particularly, the sections dealing with imposition of anti-dumping duty, even with retrospective effect. He pointed out from Section 9A of CTA that the anti-dumping duty is required to be determined “upon the importation of such article into India, and 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.” He pointed out that it applies to the goods 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 Antidumping 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 antidumping duty not exceeding the margin of dumping in relation to such article.
Explanation – For the purposes of this section, –
(a) “margin of dumping”, in relation to an article, means the difference between its export price and its normal value;
(b) “export price”, in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under Sub-section (6);
(c) “normal value”, in relation to an article, means –
(i) the comparable price, in the ordinary course of trade, for the like article when meant for consumption in the exporting country or territory as determined in accordance with the rules made under Sub-section (6); or
(ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either –
(a) comparable representative price of the like article when exported from the exporting country or territory or an appropriate third country as determined in accordance with the rules made under Sub-section (6); or
(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under Sub-section (6):
Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transshipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin.
(2) The Central Government may, pending the determination 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 antidumping 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 seriously undermine the remedial effect of the anti-dumping duty liable to be levied,
the Central Government may, by notification in the Official Gazette, levy antidumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under Sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such dale as may be specified in the notification.
(4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force.
(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition:
Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such
imposition for a further period of five years and such further period shall commence from the date of order of such extension:
Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
(6) The margin of dumping as referred to in Sub-section (1) or Sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty.
(7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each 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 Id. Commissioner, we are satisfied that the order has correctly determined the question involved in the appeal. It is legal and proper for the reasons given by the Commissioner. We notice from Section 9A of the CTA, which is the charging section, that imposition of anti-dumping duty on dumped articles is required to be determined “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”. On a clear reading of the above provision it indicates that the duty has to be determined when the goods have been imported and are subject for clearance, while those which have already entered Indian territory and are warehoused have not been determined for anti-dumping and the notification does not indicate that it will have retrospective applicability. In the absence of any such term in the notification, the notification cannot be read in that manner. The notification clearly indicates that antidumping duty on the said item could be imposed, when exported from Japan into India, and it could be imposed 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 ware
housed. 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 those warehoused are also subject to anti-dumping duty in terms of
notification and that no distinction is being made with regard to warehoused
goods. The contention taken is that rate of duty as on the date of clearance of
the goods from warehouse in terms of Section 15 of the Act would apply.
This has been answered to by the learned Commissioner that Section 15 applies only to customs duty and CVD determined in terms of Sections 2 and 3
of the Customs Tariff Act and it does not pertain to self-contained provision
of anti-dumping duty. Therefore, the grounds raised by the Revenue has al
ready been answered in the Commissioner’s reasonings and we concur with
the same. The levy is not short-levy but a fresh one and therefore the judgment of Caprihans (India) Ltd. v. CC (supra) and NGEF Ltd. v. CC & CCE and
that of Vazir Sultan Tobacco Co. Ltd. (supra) case clearly applies to the facts of
the present case. Applying its ratio, we do not find any merit in the appeal
and dismiss the same.