2017 (10) TMI 1074 - AT - Customs

ADD - classification to attract levy - Appellant s grievance is that the goods imported by appellant declared as Styrene Butadience Co Polymer was classified under CTH 40021100 and such goods were provisionally cleared - Revenue s only grievance today is that antidumping duty having been imposed in terms of N/N. 100/04-Cus dated 26.09.2004, in consequence of the Sunset Review by the designated authority, in terms of his final findings dated 2nd June, 1999, antidumping duty was levied on the above said goods. Held that - There is no whisper of any reason in the show-cause notice to disturb the classification claimed by the appellant. Therefore, the classification of the imported declared by the appellant under CTH 40021100 remained untouched by this order. Anti-dumping notification indicates that the goods falling under customs heading Nos. 3903 and 4002 of the first schedule to the Customs Tariff Act, 1975 were subject to levy of anti-dumping duty. Accordingly, levy was confined to the goods of heading 4002.19 since anti dumping investigation was confined to the goods covered by heading 4002.19. Therefore there cannot be any mis-conception about the product under consideration. Revenue s submission that the appellant did not plead as above before the learned adjudicating authority is untenable as a litigant can raise question of law at any stage of proceeding till conclusion thereof. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of imported goods under CTH 40021100 for levy of anti-dumping duty without change by Revenue, Sunset Review findings leading to imposition of anti-dumping duty, Appellant's contention on goods not subject to anti-dumping duty investigation, Failure to produce evidence before adjudicating authority, Adjudication order validity based on show-cause notice, Appellant's right to raise legal questions at any stage of proceedings, Examination of classification and nature of imported product in show-cause notice, Intent of Notification No.100/2004-Cus regarding anti-dumping duty levy.

Detailed Analysis:

1. Classification and Anti-Dumping Duty:
The appellant's grievance was that goods declared as "Styrene Butadience Co Polymer" were classified under CTH 40021100 and subjected to anti-dumping duty without any change in classification by Revenue. The appellant argued that the goods imported did not fall under the category subject to anti-dumping investigation, as indicated by the judgment in the case of Rishiroop Polymers P. Ltd. v. Designated Authority, which supported the contention that the levy was unwarranted due to a misconception of the law.

2. Sunset Review and Anti-Dumping Duty Imposition:
The Revenue imposed anti-dumping duty based on Notification No.100/04-Cus dated 26.09.2004, following the Sunset Review by the designated authority. The appellant highlighted that the Sunset Review related to goods subject to the initiation of the levy of anti-dumping duty, which did not include the goods imported by the appellant under CTH 40021100. The appellant argued that the goods under consideration by the Designated Authority were different from those covered by CTH 40021100, making the levy of anti-dumping duty on the appellant's goods unjustified.

3. Evidence Production and Adjudication Order:
The Revenue contended that the appellant failed to produce evidence before the adjudicating authority, suggesting that the adjudication order should not be disbursed. However, the appellant's right to raise legal questions at any stage of the proceeding was upheld, allowing the appellant to challenge the basis of the adjudication order.

4. Show-Cause Notice and Classification Examination:
The show-cause notice issued by the adjudicating authority did not provide any reason to disturb the classification claimed by the appellant under CTH 40021100. The notice focused on finalizing the assessment without proposing the levy of anti-dumping duty. The examination of the classification and nature of the imported product was not adequately addressed in the show-cause notice, leading to the conclusion that the levy of anti-dumping duty was not intended based on Notification No.100/2004-Cus.

5. Conclusion and Decision:
The judgment emphasized that the goods imported by the appellant did not fall under the category subject to anti-dumping duty investigation, as specified in the relevant notifications and findings. The show-cause notice lacked a basis for imposing anti-dumping duty on the appellant's goods, leading to the allowance of both appeals. The appellant's right to raise legal questions throughout the proceedings was upheld, ensuring a fair adjudication process.