2010 (11) TMI 353 - AT - Customs

Waiver of pre-deposit of Anti-Dumping Duty - The appellant s claim that the machine imported by them is squarely covered by exclusion clause (iv) of Notification No. 39/2010-Cus - The machine is an injection moulding machine for manufacture of footwear soles - Held that - Prima facie, Anti-Dumping Duty is recoverable from the appellant - appellant directed to pre deposit the amount of duty.

Summary

Issues:
1. Application for waiver of pre-deposit and stay of recovery of Anti-Dumping Duty.
2. Classification of imported machine under CTH 8453 or CTH 8477.
3. Applicability of exclusion clause in Notification No. 39/2010-Cus.
4. Prima facie liability of Anti-Dumping Duty at 174% ad valorem.

Analysis:
1. The judgment dealt with an application seeking waiver of pre-deposit and stay of recovery of Anti-Dumping Duty imposed by lower authorities. Another application requested out-of-turn hearing, which was deemed unnecessary as the stay application was already under consideration.

2. The original authority ordered the recovery of Anti-Dumping Duty at 174% ad valorem on a machine imported under the EPCG Scheme. The dispute arose regarding the classification of the machine under CTH 8453 or CTH 8477. The appellant claimed exemption based on the exclusion clause iv of Notification No. 39/10 Cus., contending that the machine was for injection moulding of footwear soles.

3. The appellant argued that the machine should be classified under CTH 8453 and exempted from Anti-Dumping Duty, as it was intended for injection moulding of footwear soles. However, the respondent contended that the machine fell under CTH 8477 for working rubber or plastics, not under CTH 8453 for making or repairing footwear. The authorities below supported this classification based on literature and HSN Explanatory notes.

4. After considering submissions, the tribunal found that the machine was for injection moulding of synthetic polymers to generate soles, not for making or repairing footwear from hides, skins, or leather. Therefore, the machine was appropriately classified under CTH 8477 for working rubber or plastics. Consequently, the appellant was not eligible for the exemption under the exclusion clause of the Notification.

5. The tribunal upheld the levy of Anti-Dumping Duty at 174% ad valorem on the imported machine, as the appellant failed to demonstrate any financial hardships. The appellant was directed to pre-deposit the duty amount within four weeks and report compliance by a specified date. The early hearing application was also disposed of in the judgment.