2016 (11) TMI 396 - AT - Customs

Exemption from ADD - vitrified tiles - import from Peoples Republic of China and United Arab Emirates - new shippers review - compliance with condition of exporter combination in the context of the duality expressed therein - Held that - Confronted, as we are, with two entities designated exporters, the lack of a definition of export or exporter in Customs Tariff Act, 1975 and the contextual disconnect with the definition in Customs Act, 1962, common parlance usage compel us to perceive the transaction from the perspective of the importer; probably, there is a justification to do so as the duty in dispute is leviable on imported goods. An importer contracts with its supplier and, being a sale contract, it finds one entity at each end of sale and purchase. Likewise, place of export cannot be in plural and any other location before arrival can only be transshipment points. Patently, exclusion of one of the two entities listed in the exporter s claim would shift the pertinent duty to sl. no. 10; both are required to be associated with the import transaction to be entitled to nil rate of anti dumping duty. Therefore, there is no basis for Revenue to contend that the exemption is applicable only if the import originates from M/s Ableace; for if that were to be so, there is no role whatsoever for the exporter in China in the transaction between M/s RAK Ceramics Pvt Ltd and M/s Ableace. Implicitly, the transaction between M/s Joyson Ceramic Materials Co. Ltd and the importer in India has to be placed through M/s Ableace to be exempted from anti-dumping duty. Without this structuring, the international practice in documentation of shipping cannot also be complied with. Therefore, the impugned order is legal and proper in allowing the benefit of exemption from anti-dumping duty.

Summary

Issues Involved:
Applicability of serial no. 9 or 10 of the Anti-Dumping Duty notification no. 82/2008 dated 27th June 2008.

Analysis:
1. The primary issue in this appeal was the determination of the applicability of serial no. 9 or 10 of the Anti-Dumping Duty notification. The case revolved around the 'sunset review' of anti-dumping duty on 'vitrified tiles' from China and UAE, and the 'new shipper's review' under the Customs Tariff Rules. The exemption from anti-dumping duty was granted to tiles exported from China by a specific company, while other combinations were subject to duty.

2. The original authority concluded that serial no. 10 applied, leading to a duty recovery decision. However, the first appellate authority found that the routing demonstrated in serial no. 9 was met, emphasizing the impossibility of two exporters in a single transaction. This conclusion was based on the documentation referencing both entities involved in the export process.

3. Revenue contended that only producers and exporters could apply for the 'new shippers review,' highlighting discrepancies in the documentation and the payment process. They argued that the appellate authority's interpretation rendered certain conditions redundant, and the payment structure violated stipulated conditions.

4. The Tribunal declined to rely solely on the findings of the designated authority, emphasizing the importance of interpreting the notification itself in the context of the legislation. The Tribunal's role was to assess the legality and propriety of decisions, not to endorse recommendations blindly.

5. The appellant provided relevant documents and cited a previous Tribunal decision. The dispute centered on the requirement of invoice production by a specific entity and the payment flow, which the Tribunal found lacking explicit conditions in the notification.

6. The absence of a clear definition of 'exporter' in the relevant Acts led to a common parlance interpretation of the notification. The focus was on compliance with the exporter combination condition rather than strict legal definitions.

7. The dispute was limited to the compliance with the exporter combination condition, concerning the origin and description of the goods in question.

8. The lack of a defined 'exporter' in the Acts necessitated a perspective shift towards the importer in interpreting the transaction. The duty levied on imported goods required a clear understanding of the entities involved in the sale and purchase process.

9. The Tribunal emphasized that both entities listed as exporters needed to be associated with the import transaction to qualify for the 'nil' rate of anti-dumping duty. The structuring of the transaction through M/s Ableace was crucial for exemption eligibility.

10. Ultimately, the Tribunal found the appeals of Revenue to be without merit and dismissed them, upholding the legality and correctness of the exemption from anti-dumping duty as per the impugned order.