2017 (11) TMI 493 - AT - Customs

Safeguard duty - N/N. 4/2012-Cus (SG) dt. 05.10.2012 - imported Carbon Black N 330 - Held that - the issue in question is no more res integra and stands settled by the Hon ble Bombay High Court in the case of Balkrishna Industries Ltd. Vs. UOI 2015 (12) TMI 1390 - BOMBAY HIGH COURT wherein it has been held that the safeguard duty imposed under Section 8C of the Customs Tariff Act, 1975, vide N/N. 4/2012-Cus is leviable, as the same is country specific, whereas the other two notifications are not country specific - The Hon ble High Court held that inasmuch as there is no exemption from safeguard duty leviable under Section 8C, which is imposed on the goods imported from China, the importer has to pay safeguard duty, in terms of Section 8C - appeal dismissed - decided against appellant.

Summary

Issues:
- Whether exemption from safeguard duty is available under the Foreign Trade Policy?
- Whether the demand for safeguard duty is legal and logical?
- Can reliance be placed on a judgment stayed by the Hon'ble Supreme Court?

Analysis:

Issue 1:
The appellant imported goods exempt from custom duty under advance authorization. The Department demanded safeguard duty under Notification No. 4/2012-Cus. The appellant argued exemption under the Foreign Trade Policy and a typographical error in the notification. The Ld. Commissioner confirmed the duty demand. The AR contended that the issue is settled by the judgment of Balkrishna Industries Ltd. Vs. UOI. The Tribunal held that safeguard duty under Section 8C is leviable as per the notification and upheld the duty demand.

Issue 2:
The appellant challenged the calculation and timing of the safeguard duty demand. They argued the demand was made after the notification period and relied on a Supreme Court judgment. The AR cited precedents and argued the issue is settled by the Balkrishna Industries Ltd. case. The Tribunal found the demand legal and logical, dismissing the appeal based on the settled issue by the Hon'ble Bombay High Court.

Issue 3:
Regarding reliance on a judgment stayed by the Supreme Court, the AR argued the underlying reasoning remains valid. The Tribunal referenced a Delhi High Court case on the effect of a stay order on a judgment. Following the Delhi High Court's reasoning, the Tribunal held that the judgment of Balkrishna Industries Ltd. can be applied, as the stay does not affect the judgment's basis. The appeals were rejected based on the settled issue by the Hon'ble Bombay High Court, as no contrary decision was presented.

In conclusion, the Tribunal upheld the duty demand, citing the settled issue by the Hon'ble Bombay High Court and the applicability of the judgment despite a stay by the Supreme Court. The appeals were dismissed based on the established legal principles and precedents.