2008 (6) TMI 195 - AT - Customs

Application for rectification of mistake held that Sec. 9A(8) of the Customs Tariff Act, 1975 did not borrow provisions of Customs Act, 1962 relating to penalty and interest, so error is rectified by holding that imposition of penalty and levy of interest for evasion of anti-dumping duty, CVD and SAD is not justified - hold that the Tribunal has jurisdiction to consider ROM application after expiry of six months from the date of final order, provided that such applications are filed within six months from the date of receipt of the final order plea that an apparent mistake arises in the stay order directing pre-deposit is rejected, as it is not a mistake in the Final Order but only in the interim order, which cannot be subject matter of ROM application application partly allowed

Summary

Issues Involved:

1. Jurisdiction of the Tribunal to consider an application for rectification of mistake after the expiry of six months.
2. Imposition of penalty and levy of interest on anti-dumping duty, CVD, SAD, and surcharge.
3. Quantification of duty on Ascorbic Acid & TMBA.
4. Duty demand on exported quantity of Ascorbic Acid.
5. Duty demand on exported quantity of Atenol and Famotidine.
6. Error in the amount of pre-deposit directed in the stay order.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Tribunal to consider an application for rectification of mistake after the expiry of six months:

The Tribunal examined whether it could entertain a rectification of mistake (ROM) application filed beyond six months from the date of the final order. It relied on several judgments, including those from the Calcutta High Court and the Supreme Court, which interpreted similar statutory provisions as directory rather than mandatory. The Tribunal concluded that it has the jurisdiction to consider such applications provided they are filed within six months from the date of receipt of the final order. Consequently, the preliminary objection raised by the Revenue was overruled.

2. Imposition of penalty and levy of interest on anti-dumping duty, CVD, SAD, and surcharge:

The Tribunal noted that at the material time, Section 9A(8) of the Customs Tariff Act, 1975 did not borrow provisions of the Customs Act, 1962 relating to penalty and interest. It referenced the case of Bajaj Health & Nutrition Pvt. Ltd. v. CC, Chennai, where it was held that penalty and interest provisions were not applicable to anti-dumping duties. Following this reasoning, the Tribunal set aside the imposition of penalties and interest on anti-dumping duty, CVD, and SAD. It also set aside the interest levied and penalty imposed for non-payment of surcharge under Section 90 of the Finance Act, 2000.

3. Quantification of duty on Ascorbic Acid & TMBA:

The applicant contended that the duty demand included an already paid amount of Rs. 1,21,80,032/- on clearance to DTA. The Tribunal found no error in the quantification upheld by the Commissioner, who was not satisfied with the payment particulars furnished by the applicants. The Tribunal rejected the prayer for remand for re-quantification, stating it was beyond the scope of a ROM application.

4. Duty demand on exported quantity of Ascorbic Acid:

The Tribunal upheld the duty demand on the entire quantity of Ascorbic Acid, noting that the department's case, which the Tribunal had upheld, was that the acid was not used in manufacturing any final products by the applicant-company. Hence, even if any quantity was exported through merchant-exporters, customs duty was still payable as the acid was cleared as such.

5. Duty demand on exported quantity of Atenol and Famotidine:

The Tribunal rejected the plea regarding the duty demand on exported Atenol and Famotidine, noting that the applicants did not produce satisfactory proof of export before the Commissioner. This plea was also deemed beyond the scope of a ROM application.

6. Error in the amount of pre-deposit directed in the stay order:

The Tribunal dismissed the plea of an apparent mistake in the stay order directing a pre-deposit of Rs. 14,30,208/-, as the actual demand was Rs. 14,13,208/-. It clarified that any mistake in the interim order could not be the subject matter of a ROM application.

Conclusion:

The Tribunal allowed the application for rectification of mistake partly, setting aside the imposition of penalty and levy of interest on anti-dumping duty, CVD, SAD, and surcharge, while rejecting other pleas related to duty quantification and demands on exported quantities. The judgment was pronounced in court on 25-6-2008.