ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this Appeal, filed by M/s. OCL India Ltd., is whether the refund of Antidumping Duty is available to them in terms of Notification No. 59/96, dated 21-8-96 and Notification No. 98/96, dated 21-12-96.
2. Shri K.K. Banerjee, learned Advocate, submitted that the Appellants imported Dead Burnt Magnesite (DBM) having MgO content not less than 97% from Peoples Republic of China and filed Bill of Entry on 30-3-96; that the Designated Authority, on a complaint received from the Magnesite Association of India, initiated an investigation on 15-5-95 on import of DBM involving MgO content ranging from 85% to 92% is that in its Preliminary Findings, the Designated Authority recommended imposing provisional anti-dumping duty on import of DBM from PR China covered by its investigation; that a Notification No. 34/96-Cus., dated 8-7-96 was issued levying provisionally anti-dumping duty on all varieties/grades of DBM which was challenged by the Appellants by a Writ Petition in the High Court of Orissa on the ground that imposition of duty on all varieties of DBM without restricting it to the “product under investigation” is not authorised by law; that the High Court directed that the collection of levy would be restricted to 50%; that Notification No. 34/96-Cus., dated 8-7-96 was amended by Notification No. 59/96-Cus., dated 21-8-96 by which the anti -dumping duty was leviable on DBM having MgO content ranging from 85% to 92%; that the Designated Authority announced its final findings on 12-11-96 in which it was clearly mentioned that “The Authority has considered imports of DBM having 85-92% MgO content and has excluded DBM having above 92% MgO content”; that in terms of Rule 18 of the Customs Tariff (Identification, Assessment and Collection of anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, a Notification No. 98/96-Cus., dated 20-12-96 was issued imposing anti-dumping duty on DBM having MgO content ranging from 85% to 92% when imported from P.R. China. The learned Advocate, further, submitted that as the final anti-dumping duty fixed after the investigation was in respect of DBM having MgO content ranging from 85% to 92%; the Appellants filed a refund application for Rs. 8,32,563/-; that the Deputy Commissioner had sanction Rs. 7,21,875/- and rejected claim for Rs. 1,10,688/- on the ground that proper evidence regarding quality of goods was not made available; that the Commissioner (Appeals) has also rejected their Appeal on the ground that Notification Nos. 59/96 and 98/96 were effective from the date on which they were published in the Gazette of India; that the said issue was not before the Commissioner (Appeals) as the sole
issue for decision before him was whether the evidence regarding quality of DBM was available or not; that in fact they had provided along with the refund claim a copy of the Quality Inspection Certificate issued by the Independent/Neutral Surveyors M/s. Mineral Test Laboratory of Shenyang which clearly certified that the MgO content was 97.09%, The learned Advocate relied upon the decision in the case of Jairam & Sons v. C.C., Cochin – 1983 (13) E.L.T. 1205 (T) wherein it has been held that the Certificate produced by the Appellants cannot be totally ignored.
3. The learned Advocate, finally, submitted that Rule 21(2) clearly provides for the refund of difference between the provisional anti-dumping duty and the final anti-dumping fixed after the conclusion of the investigation; that thus the Rules themselves have made the question of “prospectivity” or “retrospectivity” of any notification redundant.
4. We also heard Shri A.K. Mondal, learned Departmental Representative, who reiterated the findings of both the lower authorities.
5. We have considered the submissions of both the sides. A perusal of the Adjudication Order No. 73/2000, dated 16-7-2001 passed by the Deputy Commissioner reveals that he has given his specific finding that “in terms of Notification 98/96, dated 20-12-96 issued on the basis of final findings by the Designated Authority, no Anti-dumping Duty is leviable on the imported DBM covered under the aforesaid Bills of Entry. And for that reason, the provisional Anti-dumping duty already deposited by the assessee is refundable under Rule 21(3) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 read with proviso (b) to Section 9A(2) of Customs Tariff Act, 1975 also read with Section 27 of Customs Act, 1962.” This finding, it appears was not challenged by the Department before the Commissioner (Appeals) by way of an application under Section 129D of the Customs Act and as such the Commissioner (Appeals) could not have rejected the Appeal filed by the Appellants that Notification Nos. 59/96-Cus. and 98/96-Cus. did not have retrospective application. The Adjudicating Authority “after deciding in principle that the claim is admissible or otherwise” proceeded to determine the actual amount of claim of refund to be sanctioned/rejected. The Deputy Commissioner allowed the refund in respect of B/E No. 1702, dated 4-8-95, B/E No. 1703, dated 4-8-95 and B/E No. 1818, dated 12-7-96. He, however, rejected the claim in respect of B/E No. 790, dated 30-3-96 as the “proper evidence regarding the quality of goods, i.e. % of MgO content in the DBM could not be available. Hence it cannot be accepted that the subject item is not leviable to Anti-dumping duty.” The Appellants have claimed that they had filed the appeal against such rejection of the refund claim. We observe that no finding has been recorded by the Commissioner (Appeals) on this aspect and he has rejected the claim on a completely new ground which was not raised before him by the Department under Section 129D of the Customs Act. We, therefore, set aside the impugned Order and remand the matter to the Commissioner (Appeals) to decide the matter afresh on the question as to whether there is evidence about the MgO content of the DBM in respect of B/E No. 790 dated 30-3-96.
6. The appeal is allowed by remand.