ORDER
T.K. Jayaraman, Member (T)
1. Revenue has filed this appeal against the OIA No. 153/2003-Cus., dated 17-11-2003 passed by the Commissioner of Customs (Appeals), Cochin.
2. The respondents imported 56,800 pieces of CFL lamps through Cochin Port on 26-11-2002. The goods were cleared on payment of duty at the rate of 30%+16%+4%. Subsequently, the Government, by Notification No. 138/2002-Cus., dated 10-12-2002, imposed definitive anti-dumping duty on all imports of CFL from the People’s Republic of China and Hongkong. Further, in terms of Para 2 of the said Notification, the said levy would be effective from the date of imposition of provisional anti-dumping duty i.e. 21-12-2001. Since the imported goods would be leviable to anti-dumping duty in terms of the above-mentioned Notification, Revenue proceeded against the respondents for recovery of the duty not levied. The Deputy Commissioner of Customs confirmed a demand of Rs. 3,42,709/- under Section 28(2) of the Customs Act. The respondents approached the Commissioner (Appeals), who allowed the appeal of the respondents in the impugned OIA.
3. The Revenue is aggrieved over the impugned order on the following grounds:
(i) The demand for short levy was raised in pursuance of Notification No. 138/2002 dated 10-12-2002. Para 2 of the Notification indicates that the levy is w.e.f. 21-12-2001. In the present case, goods were imported on 26-11-2002 and hence anti-dumping duty is clearly chargeable on the goods. Therefore, the order of the Commissioner (Appeals) is not proper and legal.
(ii) Rule 20(2)(b) of the Customs Tariff (Identification, Assessment and Collection of Countervailing Duty on Subsidized Articles and for Determination of Injury) Rules, 1995 provides for retrospective levy of anti-dumping duty.
(iii) Similarly Sub-section (3) of Section 9A of the Customs Tariff Act, 1975 provides for retrospective levy of duty.
(iv) In this context, the findings of the Hon’ble Supreme Court in the case of ITW Signode India Ltd. v. Collector of Central Excise is relevant. The Hon’ble Apex Court held that “Interpretation of Statute -Validation Act removes actual or possible voidness, disability or other defect by confirming the validity of anything which is or may be invalid”. The provision 9A(3) of the Customs Tariff Act, 1975, which provides for retrospective levy of duty, has removed the disability for non-demand of duty which was not in existence at the time of the import of the goods.
(v) In the light of the above said statutory provisions and decisions of the Hon’ble Apex Court, it is found that the retrospective levy of duty is as per law. Since neither the provisions of retrospective levy of duty in the Notification 138/2002 has been modified, amended or repealed by the Government, nor the provisions been struck down by Courts of competent jurisdiction (Hon’ble Supreme Court or High Courts), the provisions of the Notification 138/2002 dated 10-12-2002 are applicable in letter and spirit of the Notification.
4. Shri Ganesh Havanur, the learned SDR appeared for the Revenue and Shri S. Raghu, the learned Advocate, appeared for the Respondents.
5. The learned SDR reiterated the grounds of appeal of the Revenue.
6. Shri S. Raghu, the learned Advocate, pointed out that according to Rule 13 of the Customs Tariff (Anti-dumping Duty on Dumped Articles) Rules, 1995, the provisional duty would remain in force only for a period of six months. In the present case, when the goods were imported, the Provisional Antidumping Duty lapsed. Hence, the Commissioner (Appeals) has rightly held that retrospective effect cannot be given to cover a period when the levy itself was not in force.
7. We have gone through the records of the case carefully. From the facts of the case, it is very clear that when the goods were imported, there was no Notification imposing Provisional Anti-dumping Duty as the Notification itself lapsed after a period of six months in terms of Rule 13 of the Customs Tariff (Anti-Dumping Duty on Dumped Articles) Rules, 1995. The Commissioner (Appeals) has rightly held that in the case of Anti-dumping Duty, the Notification alone creates chargeability of duty in terms of Section 9A of the Customs Tariff Act, 1975. In the instant case, at the time of import of the goods, no duty was chargeable. Chargeability cannot be created with retrospective effect. We are entirely in agreement with the view taken by the Commissioner (Appeals). Therefore, we do not find any merit in the Revenue’s appeal. In these circumstances, we dismiss the Revenue’s appeal and uphold the impugned Order-in-Appeal.
(Pronounced in open Court on 27-7-2006)