2009 (8) TMI 990 - AT - Customs

Anti-Dumping duty - Metallurgical Coke - goods not received in the factory - The case of the Revenue is that goods which were not received in the factory are not used for intended purpose therefore are liable for anti-dumping duty - Held that - The Hon ble Supreme Court in the case of BPL Display Devices Ltd. 2002 (7) TMI 446 - CEGAT NEW DELHI held that in case the inputs were imported for use in the manufacture of specified goods shortage/leakage/damage for such inputs during transit the exemption is not deniable. In the present case there is not even an allegation that Coke which was found short was diverted for some other purpose. In absence of such allegation the ratio of the decision of Hon ble Supreme Court is fully applicable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Confirmation of demand for short goods at the factory
- Applicability of anti-dumping duty on imported goods
- Interpretation of Customs rules regarding intended use of imported goods

Confirmation of Demand for Short Goods:
The appellant appealed against an order confirming a demand for goods found short at the factory after importing 5200 M.T. of Metallurgical Coke, where only 4917 M.T. were received. The Revenue contended that since the goods not received were not used for the intended purpose, anti-dumping duty was applicable. The appellant argued that the shortage was due to moisture and handling losses, supported by a penal clause for moisture content exceeding limits. The Commissioner (Appeals) allowed losses up to 1%, considering the nature of Met Coke and transportation losses.

Applicability of Anti-Dumping Duty:
The Revenue claimed that anti-dumping duty exemption for Metallurgical Coke applied only if used by a manufacturer of pig iron or steel using a blast furnace. As the imported goods were not fully used for the intended purpose, the duty demand was justified under Rule 8 of Customs Rules. However, the appellant contended that there was no evidence of diversion and the goods were indeed intended for use in steel manufacture, citing the absence of any allegation of diversion.

Interpretation of Customs Rules:
The Tribunal noted that the imported Metallurgical Coke had moisture content, leading to losses during transportation and handling. Referring to a Supreme Court decision, the Tribunal emphasized that if goods were imported for the manufacture of specified items but faced shortages or damages during transit, the exemption could not be denied. In the absence of evidence of diversion, the Tribunal applied the Supreme Court's decision, setting aside the impugned order and allowing the appeal.

Conclusion:
The Tribunal ruled in favor of the appellant, emphasizing that without evidence of diversion, the goods were intended for the specified purpose of steel manufacture. The decision highlighted the importance of considering losses during transit and the intended use of imported goods when determining the applicability of anti-dumping duty exemptions.