2009 (9) TMI 707 - AT - Customs

Stay/Dispensation of pre-deposit - Anti-dumping duty - Provisional assessment - prospective or retrospective application of rate of duty?

Issues Involved:
1. Legality of the provisional assessment of anti-dumping duty.
2. Applicability of Section 9A(8) of the Customs Tariff Act regarding provisional assessment.
3. Validity of the bond executed for provisional assessment.
4. Timeliness of the demand under Section 28 of the Customs Act, 1962.
5. Nature of the imported goods and their classification under anti-dumping duty.
6. Retrospective application of anti-dumping duty under Section 9A of the Customs Tariff Act, 1975.
7. Procedural aspects of the anti-dumping duty demand and assessment.

Detailed Analysis:

1. Legality of the Provisional Assessment of Anti-Dumping Duty:
The appellant contended that there was no legal provision for insisting on a provisional assessment at the time of import, making the provisional assessment ab initio void. The Tribunal noted that provisional anti-dumping duty was imposed as per Notification No. 128/2001 dated 21-12-2001, which was effective until 20-6-2002. The goods were cleared provisionally pending determination of definitive anti-dumping duty. The Tribunal upheld the legality of the provisional assessment based on the statutory framework provided under Section 9A of the Customs Tariff Act, 1975.

2. Applicability of Section 9A(8) of the Customs Tariff Act:
The appellant argued that Section 9A(8) did not refer to provisional assessment at the relevant time, making the provisional assessment legally invalid. The Tribunal clarified that sub-section (8) of Section 9A was introduced by Section 89 of the Finance Act, 2000, and amended in 2004. The Tribunal held that the provisions of the Customs Act, 1962, including those relating to provisional assessment, applied to anti-dumping duty as per the amendment, making the provisional assessment valid.

3. Validity of the Bond Executed for Provisional Assessment:
The appellant claimed that the bond executed for six months had expired and was not renewed by the department, making the demand invalid. The Tribunal noted that the bond executed by the appellant was for the clearance of CFLs in respect of anti-dumping duty and that the appellant was aware of the ongoing investigation. The Tribunal found that the non-extension of the bond was not a fatal lapse and upheld the demand.

4. Timeliness of the Demand under Section 28 of the Customs Act, 1962:
The appellant contended that the demand under Section 28 was hit by limitation as it was not issued within six months from the date of payment of duty. The Tribunal referred to the apex Court's decision in Virgo Steels, which clarified that the mechanism of Section 28 of the Customs Act, 1962, applies to the recovery of anti-dumping duty. The Tribunal upheld the demand as valid and within the permissible time frame.

5. Nature of the Imported Goods and Their Classification:
The appellant argued that they had imported only fluorescent tubes for emergency lamps and not CFLs. The Tribunal found that the import documents disclosed the import of CFLs, making the goods liable to anti-dumping duty. The Tribunal upheld the classification of the imported goods under the anti-dumping duty regime.

6. Retrospective Application of Anti-Dumping Duty:
The appellant argued that Notification No. 138/2002-Cus., dated 10-12-2002, should not have retrospective operation. The Tribunal held that anti-dumping duty could be levied retrospectively from the date of the provisional duty notification (21-12-2001) as per the statutory provisions. The Tribunal referred to the decisions in Nitco Tiles Ltd. and Chhotu Lal Daga, which supported the retrospective levy of anti-dumping duty during the interregnum period.

7. Procedural Aspects of the Anti-Dumping Duty Demand and Assessment:
The appellant argued that no formal demand notice was issued by the department, making the demand invalid. The Tribunal found that the appellants were aware of the ongoing investigation and the provisional duty notification. The Tribunal held that the procedural aspects were adequately addressed, and the demand was valid.

Conclusion:
The Tribunal directed the appellant to pre-deposit the entire anti-dumping duty amount of Rs. 2,73,31,320/- within eight weeks from the date of hearing (7-9-2009) for the appeal to be heard. The Tribunal emphasized the importance of the anti-dumping duty mechanism in protecting domestic industries and upheld the validity of the provisional assessment, retrospective levy, and procedural aspects of the demand.

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