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2011 (10) TMI 448 - AT - CustomsAnti dumping duty - Classification - Notification No. 61/2007, dated 29-3-2007 - in the show-cause notice as also in the order-in-original, the adjudicating authority has observed that the goods under importation was principally used as the wheels for buses and trucks and it could also be used as wheel for trailers - commercial invoices submitted by the appellant in respect of the imports made indicates the goods as Trailer parts, wheel rims size 7.5 x 20 - In the invoice dated 16th August, 2006, the goods are described as parts or accessories of trailers wheel rim size 7.25 x 20 in respect of bill of entry no. 891065, dated 6-9-2006; so is the case in respect of invoice dated 16-9-2006 relating to imports vide bill of entry No. 92072, dated 5-10-2006 - Both the Notifications No. 51/07-Cus., dated 29-3-2007 imposing the provisional duty as also Notification No. 124/07-Cus., dated 31-12-2007 imposing final duty describe the goods subject to the anti-dumping duty as those falling under Tariff Item 8708 70 00 of the First Schedule to the Customs Tariff Act - from the documentary evidence available on record, it is clear that the goods under importation merit classification under Heading 87.16 and not under Heading 87.08 as alleged with the notice - Held that In the absence of any such evidence it is very difficult to accept the contention of the department that the goods under importation merits classification under Heading 87.08 and attracts anti-dumping duty - Appeal is allowed
Issues Involved:
1. Classification of imported goods. 2. Demand for differential duty. 3. Time-barred demand. 4. Onus of proof for classification. 5. Applicability of anti-dumping duty. Issue-wise Detailed Analysis: 1. Classification of Imported Goods: The primary issue was the classification of the imported goods, which were declared as "Trailer Parts Steel Wheels Size 7.5 x 20". The Customs department classified these goods under Customs Tariff Heading No. 8708 70 00, considering them as "Road Wheels" for buses and trucks. The appellant argued that the goods should be classified under Heading No. 8716 90 10, as parts of trailers. The Tribunal noted that the department did not provide evidence to support the classification under Heading 8708 70 00. The commercial invoices described the goods as trailer parts both before and after the imposition of anti-dumping duty, indicating that the goods were commercially known as trailer parts. The Tribunal concluded that the goods should be classified under Heading 87.16. 2. Demand for Differential Duty: The show-cause notice proposed a demand of Rs. 1,37,41,280/-, but the order-in-original confirmed a higher demand of Rs. 1,45,58,530/-. The appellant contended that as per Rule 21(1) of the Customs Tariff (Identification, Assessment, and Collection of Duty on Dumped Articles and Determination of Injury) Rules, 1995, the differential duty cannot be demanded if the final duty is higher than the provisional duty. The Tribunal agreed with this contention, referencing previous judgments that supported the appellant's position. 3. Time-barred Demand: The appellant argued that the demand for duty beyond six months was time-barred as there was no misdeclaration or suppression of facts alleged in the show-cause notice. The Tribunal noted that the appellant had notified the Customs department of the classification error and requested reclassification before the show-cause notice was issued. Therefore, the demand for the period from 7-4-2007 to 30-7-2007 was hit by limitation. 4. Onus of Proof for Classification: The appellant cited the Supreme Court judgments in HPL Chemicals Ltd. v. C.C.E., Chandigarh and C.C.E., Nagpur v. Vicco Laboratories, which held that the onus is on the department to prove the classification of goods. The Tribunal found that the department did not provide evidence to support its classification of the goods under Heading 87.08. The Tribunal concluded that the department failed to meet its burden of proof. 5. Applicability of Anti-dumping Duty: The appellant argued that anti-dumping duty is leviable under Section 9A of the Customs Tariff Act, 1975, and the relevant notifications only applied to goods classified under Heading 87.08. Since the Tribunal concluded that the goods should be classified under Heading 87.16, the anti-dumping duty could not be levied. The Tribunal noted that the notification imposing anti-dumping duty restricted the levy to goods falling under sub-heading 8708 70 00, and since the goods were classified under 8716.90, the anti-dumping duty was not applicable. Conclusion: The Tribunal allowed the appeal, concluding that the goods were classifiable under Heading 87.16, the demand for differential duty was not justified, the time-barred demand was invalid, the department failed to meet its burden of proof for classification, and the anti-dumping duty was not applicable.
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