2014 (12) TMI 532 - AT - Customs

Exemption from anti-dumping duty - warehoused goods - import of Phosphoric Acid - Notification 24/2013 dated 18.04.2013 - whether exemption from safeguard duty and anti dumping duty will be available or not in the case of material imported against duty-free import authorisation made transferable by the licensing authority when the goods were sought to be cleared on 09/05/2013 from the warehouse - Difference of opinion - Majority order - Held that - Appellant filed ex-bond Bill of Entry on 09/05/2013 for clearance of the goods from the warehouse. The clearance was sought to be effected under the DFIA which was transferred to the appellant on 09/04/2013. As per Section 15(1)(c) of the Customs Act, 1962, the date for determination of rate of duty and tariff value of imported goods in the case of goods cleared from a warehouse under Section 68 is the date on which the bill of entry for home consumption in respect of such goods is presented under that Section. Therefore, in the present case, the rate of duty that would apply is the rate prevalent on 09/05/2013 when the Bill of Entry for home consumption was filed. On that date when the bill of entry was filed, Notification 98/2009 clearly stated that the exemption from safeguard duty and anti dumping duty shall not be available in case materials are imported against an authorisation made transferable by the regional authority. The said Notification does not stipulate on what date the authorisation should have been made transferable. In the absence of any specific mentioning of the date as to when the transferability should have been made, there is no merit in the contention of the appellant that the Notification stipulates 18/04/2013 as the date on which the authorisation should have been transferable. Since the wordings of the Notification are clear and unambiguous, no extra support or aid is required for interpreting the Notification. In this view of the matter, I am of the view that the appellant is not eligible for the benefit of exemption from safeguard duty and anti dumping duty in respect of ex-bond bill of entry filed on 09/05/2013 - Decided against assessee.

Issues Involved:

1. Entitlement to exemption from anti-dumping duty under Notification 98/2009 dated 11.09.2009.
2. Applicability of Notification 24/2013 dated 18.04.2013.
3. Interpretation and applicability of Notification 45/2013 dated 17.09.2013.
4. Relevance of previous case law and judicial precedents.

Issue-wise Detailed Analysis:

1. Entitlement to Exemption from Anti-Dumping Duty under Notification 98/2009:
The appellant argued that they were entitled to exemption from anti-dumping duty based on Notification 98/2009 dated 11.09.2009, which allowed imports without payment of duties, including anti-dumping duty, under a valid DFIA. The DFIA was transferred to the appellant on 09.04.2013, before the amendment introduced by Notification 24/2013.

2. Applicability of Notification 24/2013:
The respondent contended that the exemption from anti-dumping duty was not available due to the amendment made by Notification 24/2013 dated 18.04.2013, which stated that the exemption would not apply to materials imported against an authorization made transferable by the Regional Authority. The bill of entry was filed on 09.05.2013, after the amendment came into force.

3. Interpretation and Applicability of Notification 45/2013:
The appellant further argued that Notification 45/2013 dated 17.09.2013 clarified that the exemption from safeguard duty and anti-dumping duty would not be available for authorizations made transferable on or after 18.04.2013. Since their authorization was made transferable before this date (on 09.04.2013), they claimed eligibility for the exemption.

4. Relevance of Previous Case Law and Judicial Precedents:
The appellant relied on previous decisions, including Monica Electronics Ltd. and Namco Steels P. Ltd., to support their claim that the exemption should be available based on the date of the DFIA transfer. The respondent, however, cited Kasinka Trading vs. UOI to argue that exemptions are applicable based on the date of import and the prevailing notifications at that time.

Judgment Analysis:

Majority Decision:
The majority decision, including the opinion of Member (Technical) and the third member, held that the appellant was not entitled to the exemption from anti-dumping duty. The key points were:

1. Section 15 of the Customs Act, 1962: The rate of duty applicable is determined by the date of filing the bill of entry for home consumption. In this case, the bill of entry was filed on 09.05.2013, when Notification 24/2013 was already in force, denying the exemption for authorizations made transferable by the Regional Authority.

2. Notification 45/2013: The amendment introduced by Notification 45/2013 dated 17.09.2013 was prospective and not retrospective. It clarified that exemptions would not apply to authorizations made transferable on or after 18.04.2013, but this did not affect the appellant's case as the relevant date for determining duty was 09.05.2013.

3. Case Law: Previous case laws cited by the appellant were distinguished on the grounds that they dealt with changes in the Foreign Trade Policy and not with amendments to customs notifications. The specific wording of the notifications and the dates of their applicability were crucial in this case.

Conclusion:
The majority decision upheld the denial of the exemption from anti-dumping duty based on the amendments introduced by Notification 24/2013. The appeal was dismissed, and the appellant was held liable to pay the anti-dumping duty as per the prevailing notification on the date of filing the bill of entry.

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