2009 (2) TMI 628 - AT - Customs

Show cause notice - Anti-dumping duty on CFL - time limitation - classification of the imported goods - Compact Fluorescent Lamps -

Issues Involved:

1. Applicability of anti-dumping duty on CFL lamps imported by the appellant.
2. Retrospective levy of anti-dumping duty.
3. Classification of imported goods under Customs Tariff Heading.
4. Validity of demand notice and corrigendum.
5. Limitation period for issuing demand notice.
6. Invocation of Section 28 and Section 154 of the Customs Act, 1962.

Detailed Analysis:

1. Applicability of Anti-Dumping Duty:
The appellant imported CFL lamps in November 2002, classified under Customs Tariff Heading 8539.10/8539.29, and paid duty accordingly. A notification issued on 10-12-2002 imposed definitive anti-dumping duty on CFLs from China and Hong Kong, effective from 21-12-01. The Commissioner of Customs demanded anti-dumping duty based on this notification, which the appellant contested, arguing that the duty was not applicable as the goods were assessed under a different heading (8539.29) and not 8539.31 as specified in the notification.

2. Retrospective Levy of Anti-Dumping Duty:
The appellant argued that the retrospective levy of anti-dumping duty was invalid as the provisional duty had expired on 20-6-02, and no notification was in force at the time of import. They contended that the retrospective operation should only apply to the period when provisional duty was levied, not the intermediate period. The Tribunal found that the retrospective levy was not applicable as the final notification did not record findings of injury or threat of injury, which are prerequisites for retrospective commencement under Rule 20(2) of the Anti Dumping Rules, 1995.

3. Classification of Imported Goods:
The Tribunal noted that the imported goods were classified under 8539.10/8539.29 and assessed accordingly. The classification was not challenged by the Customs Authorities. Since the notification imposed anti-dumping duty on goods under 8539.31, the Tribunal held that the duty was not applicable to the imported goods classified under 8539.10/8539.29.

4. Validity of Demand Notice and Corrigendum:
The initial demand notice dated 10-2-2003 was for Rs. 60,52,232/-, which was later revised to Rs. 29,38,75,442/- via a corrigendum on 26-8-2003. The Tribunal found that the corrigendum substantially increased the liability and should be treated as a new demand notice. The Tribunal held that the corrigendum issued after the appellant's reply indicated non-application of mind and was not merely a correction under Section 154.

5. Limitation Period for Issuing Demand Notice:
The Tribunal held that the revised demand notice dated 26-8-2003 was time-barred as it was issued beyond the six-month limitation period prescribed under Section 28(1) of the Customs Act, 1962. The Tribunal relied on the decision in Varma Industries Ltd. to support this view.

6. Invocation of Section 28 and Section 154 of the Customs Act, 1962:
The Tribunal found that Section 28 could not be invoked for demand and recovery of duty imposed retrospectively. The demand notice and subsequent corrigendum were issued under Section 28, which was erroneous as the duty was not leviable at the time of import. Additionally, Section 154 could not be used to enhance the demand as it only allows for correction of clerical or arithmetical mistakes in a decision or order, not a notice.

Conclusion:
The Tribunal set aside the impugned order, holding that the anti-dumping duty was not applicable to the imported goods classified under 8539.10/8539.29, the demand notice and corrigendum were invalid, and the revised demand was time-barred. The appeal was allowed with consequential relief.

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