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2020 (2) TMI 359 - AT - CustomsAnti-Dumping Duty - Final levy of duty is higher than the provisional levy of duty - demand of differential duty - Interpretation of statute - Rule 21 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 issued vide Notification No. 2/95-Cus. (N.T.), dated 1st January, 1995 - finalization of duty by N/N. 88/2007-Customs, dated 24.07.2007 whereby the Final Antidumping Duty was fixed - HELD THAT - From the plain reading of the above rule 21(1) it is clear that in case where the Central Government has imposed Anti-dumping Duty on provisional basis and at the time of finalization if the Anti-dumping Duty is fixed on the higher side then the differential duty shall not be collected from the importer. In the present case though as per provisional Notification No. 106/2006-Cus the lower Anti-dumping Duty was imposed and by final Notification No. 88/2007-Customs, the rate of Anti-dumping Duty was higher, the provisional Anti-dumping Duty was very much considered in the Bills of Entry filed by the appellant and since the price declared by the appellant in the Bill of Entry was not lower than the Anti-dumping value the Anti-dumping Duty shown in the Bills of Entry is nil . In this case it is very clear that at the time filing of Bills of Entry there was Anti-dumping Duty imposed and since the Anti-dumping Duty arrived at is zero, there was no need of any payment on assessment of Bills of Entry. There is cleared imposition and collection of Anti-dumping Duty at the time of assessment of Bill of Entry. Moreover, as per our interpretation if there is any difference between the rate of Antidumping Duty in the provisional notification and final notification the differential amount of Anti-dumping Duty shall not be collected, therefore, only because in the appellant s case at the time of assessment there was nil Anti-dumping Duty, the differential Anti-dumping Duty as per the Final Notification cannot be demanded. Identical issue decided in the case of MERCHEM LTD. VERSUS COMMISSIONER OF CUSTOMS, COCHIN 2014 (5) TMI 523 - CESTAT BANGALORE where the Tribunal has taken a view, in such circumstances differential Anti-dumping Duty is not payable - Though the aforesaid decision is Interim Stay order but we agree with the view expressed by the Tribunal. Thus, in terms of Rule, 21(1) the appellant are not liable to pay the differential Anti-dumping duty - appeal allowed - decided in favor of appellant.
Issues: Interpretation of Rule 21 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
Detailed Analysis: 1. Issue of Provisional vs. Final Anti-dumping Duty: The case revolves around the interpretation of Rule 21 of the Customs Tariff Rules in the context of differential Anti-dumping Duty. The appellant imported Tyres, Tubes, and Flaps from China, subject to Anti-dumping Duty. Initially, the provisional Anti-dumping Duty was considered nil due to the declared value matching the duty amount. However, a final Anti-dumping Duty was imposed at a higher rate, leading to a demand for the differential duty. The primary contention was whether Rule 21(1) applies when there is a difference between provisional and final duties. 2. Appellant's Argument: The appellant argued that since the Anti-dumping Duty was assessed at the time of Bill of Entry and declared as nil due to the matching value, Rule 21(1) should apply. They relied on precedents like G M Export and Merchem Ltd to support their position that the differential duty should not be collected from the importer when the final duty is higher than the provisional duty, but no actual duty was paid at the time of assessment. 3. Revenue's Position: The Revenue contended that since no Anti-dumping Duty was paid during the Bill of Entry assessment, Rule 21(1) does not apply. They cited various judgments to support their argument that the rule is applicable only when duty is provisionally collected. They emphasized that the duty should be demanded as there was no actual collection at the time of assessment. 4. Tribunal's Decision: The Tribunal analyzed Rule 21(1) and the facts of the case. They observed that the Anti-dumping Duty was indeed considered during the assessment, even though no payment was required due to the nil value. The Tribunal referred to the judgments in G M Export and Merchem Ltd, where similar issues were addressed, and concluded that the appellant should not be liable to pay the differential duty. They highlighted that the situation in the present case mirrored the cases in the mentioned judgments, where the Tribunal ruled in favor of the importer. The Tribunal set aside the impugned orders and allowed the appeals, emphasizing the applicability of Rule 21(1) in the given circumstances. In conclusion, the Tribunal's detailed analysis of Rule 21 in the context of provisional and final Anti-dumping Duty, supported by relevant case law, led to the decision in favor of the appellant, highlighting the importance of considering the specific circumstances of duty assessment and collection in such cases.
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