2004 (9) TMI 150 - AT - Customs

Chargeability of the anti-dumping duty under Notification No. 138/2002-Cus. - Classification of the goods under sub-headings 8539.29 and 8539.31 - violation of the Indian Trade and Merchandise Marks Act, 1958 - Interpretation of the anti-dumping notification regarding the applicability of duty on Compact Fluorescent Lamps (CFL) under Chapter 85 - HELD THAT - In the instant case, duty has been imposed on CFL falling under Chapter 85 of the Customs Tariff. Classification under a Customs Tariff is not a mere academic exercise. Its main purpose is determining applicability of a particular rate of duty. The General Interpretative Rules (GIR) are integral parts of the Customs Tariff and the classification of a product in a particular chapter or heading depends not only on the terms of the heading, section and chapter notes but also on the rules of interpretation. When the anti-dumping notification imposes duty on CFL falling under Chapter 85 of the Customs Tariff, such duty becomes leviable on all goods which get classified under Chapter 85 as CFL. In particular, in our view, an incomplete, unfinished, unassembled or disassembled CFL satisfying the strict criteria laid down in GIR 2a will get classified as CFL under Chapter 85 and would, therefore, attract anti-dumping duty. If GIR 2(a) is held to be not applicable for anti-dumping duty purpose, then it would be very easy to circumvent the duty by merely removing a small insignificant part of a CFL or importing the same separately and claiming that complete CFL has not been imported. We are of the view that such interpretation that would allow and encourage circumvention and defeat a WTO compatible contingency trade protection measure is not warranted. Moreover, the GIR is an integral part of the same Customs Tariff Act, 1985 under which (Section 9A) anti-dumping duty is also levied and therefore, there is no reason to doubt its applicability specially when the product coverage under the notification is with specific reference to Chapter 85 of the Customs Tariff. We are, therefore, of the view that under the impugned notification, anti-dumping duty is leviable on goods which are complete CFL as well as goods which will merit classification as CFL under Chapter 85 in terms of GIR 2(a). As regards parts of CFL, the same would not attract anti-dumping duty as the same have not been covered specifically under the impugned notification. As regards the coverage of pin type CFL under the anti-dumping notification, we feel that it would be appropriate for the adjudicating Commissioner to obtain necessary clarification from the Designated (anti-dumping) Authority who would have considered the scope and coverage of like products while making a determination prior to issue of the anti-dumping notification. We note that anti-dumping measures are administered jointly by the Designated Authority in the Department of Commerce and the Revenue Department. We are of the view that they must act in tandem in ensuring that what should be charged to anti-dumping duty must not escape such duty and what is intended to remain outside such levy must so remain. Consultation as suggested above is absolutely essential to ensure that both authorities do not act in such a way that action of one frustrates that of the other. We also leave it open to the adjudicating Commissioner to obtain the views of affected domestic industry if so warranted to reach a just conclusion regarding coverage or otherwise of the impugned goods under the anti-dumping notification. We, therefore, set aside the impugned order and remand the matter for fresh adjudication. The appellants shall be allowed a reasonable opportunity of hearing as well as access to any opinion obtained by the adjudicating Commissioner from the Designated Authority and/or the Domestic industry. Appeal is allowed by remand.

Summary

Issues involved:
The main dispute is whether the imported goods are chargeable to anti-dumping duty under Notification No. 138/2002-Cus., dated 10-12-2002. The issues also include the classification of the goods under sub-headings 8539.29 and 8539.31, violation of the Indian Trade and Merchandise Marks Act, 1958, and the interpretation of the anti-dumping notification regarding the applicability of duty on Compact Fluorescent Lamps (CFL) under Chapter 85.

Classification of Goods:
The Tribunal found that the impugned goods are correctly classified as discharge lamps under sub-heading 8539.31, not as filament lamps under sub-heading 8539.29. The Explanatory Notes clearly distinguish between filament lamps and discharge lamps, with fluorescent lamps falling under the latter category. The adjudicating Commissioner rightly rejected the appellants' claim for classification as filament lamps.

Anti-Dumping Duty:
The Notification No. 138/2002 mentions CFL under sub-heading 8539.31, but while imposing anti-dumping duty, reference is made to CFL falling under Chapter 85. The Tribunal held that any goods conforming to the description of "Compact Fluorescent Lamps falling under Chapter 85" would attract anti-dumping duty. The purpose of an anti-dumping notification is to protect domestic industry against unfair competition, and such duty must not be circumvented.

Interpretation of Customs Tariff:
The Tribunal emphasized that classification under the Customs Tariff is crucial for determining duty applicability. Goods classified under Chapter 85 as CFL would attract anti-dumping duty. The Tribunal highlighted the importance of not allowing circumvention of duty by importing incomplete CFLs. The General Interpretative Rules (GIR) play a significant role in determining the classification for anti-dumping duty purposes.

Re-Examination and Remand:
The Tribunal decided to set aside the impugned order and remand the matter for fresh adjudication. The appellants were granted a reasonable opportunity of hearing, and the adjudicating Commissioner was advised to seek clarification from the Designated Authority regarding the coverage of pin type CFL under the anti-dumping notification. Consultation between relevant authorities and affected domestic industry was deemed essential for a just conclusion.