2018 (1) TMI 1568 - AT - Customs

Relevant date for levy of anti-dumping duty imposed after filing of the bill of entry but before clearance of the goods - interpretation of statute - recovery of differential duty under Rule 21(1) of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - HELD THAT - There is no doubt that, as on the date of filing of entry, the provisional anti-dumping duty was no longer in force. The final anti-dumping duty came into force only a few days after the presentation of bill of entry. Under Section 15 of Customs Act, 1962, the relevant date for determining duty liability is the date of filing of bill of entry. It is, thus, borne out by the facts that the proper officer was not empowered to levy anti-dumping duty on the impugned goods. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Relevant date for levy of anti-dumping duty after filing bill of entry but before clearance of goods.

Analysis:
The appeal in question pertains to M/s. Prem Lamorai challenging Order-in-Appeal No. 71 (Gr IIB)/2008 (JNCH) dated 28th February, 2008 issued by the Commissioner of Customs (Appeals), Mumbai-II. The central issue revolves around determining the relevant date for the imposition of anti-dumping duty, specifically in a scenario where the duty was imposed post filing of the bill of entry but prior to the clearance of goods. The lower authorities maintained that all duties existing at the time of payment must be settled.

The appellant had imported 'tyres, tubes, and flaps' invoiced at US$ 82080 and filed Bill of Entry No. 841627/20-7-2007, which was assessed on 26th September, 2007, with duty discharged on 28th September, 2007. The anti-dumping duty, as per Notification No. 88/2007-Cus., dated 24th July, 2007, was also levied.

The appellant's counsel argued that only duty liabilities existing at the time of bill of entry filing are collectible, emphasizing that the provisional anti-dumping duty, per Notification No. 106/2006-Cus., dated 9th October, 2006, had expired before the bill of entry submission. Reference was made to a Supreme Court decision in Commissioner of Customs, Bangalore v. GM Exports [2015 (324) E.L.T. 209 (S.C.)] to support this stance.

The Authorized Representative contended that the first appellate authority correctly interpreted Rule 21(1) of Customs Tariff Rules, 1995, restricting the recovery of differential duty to cases where provisional anti-dumping duty had already been paid, which was not applicable here.

The Tribunal observed that the provisional anti-dumping duty was no longer in effect at the time of bill of entry submission, and the final anti-dumping duty was enforced shortly after. As per Section 15 of the Customs Act, 1962, the duty liability is determined based on the bill of entry filing date. Consequently, the proper officer lacked the authority to impose anti-dumping duty on the goods in question. Therefore, the impugned order was set aside, and the appeal was allowed with consequential relief.