2005 (8) TMI 143 - AT - Customs

Import - Advance licence - Anti-dumping duty - Rate of interest - Special Additional duty - Penalty

Summary

Issues:
1. Duty obligation under advance licence scheme.
2. Claim for relief on duty demands.
3. Exclusion of ADD from the value for SAD.
4. Interest rate applicability.
5. Liability to penalty under Section 112.
6. Interest liability on SCD, SAD, and ADD.

Analysis:

Issue 1: Duty obligation under advance licence scheme
The appellants were granted duty-free clearance of imported LAM Coke under the advance licence scheme with an export obligation. Failure to meet this obligation led to a demand for duty payment. The Tribunal upheld the Department's decision, emphasizing that duty-free imports were subject to fulfilling export commitments. The appellants were required to pay all duties foregone due to non-compliance with the export obligation.

Issue 2: Claim for relief on duty demands
The appellants sought relief on various grounds, including the rate of ADD, pro-rata relief based on partial exports, and interest rate applicability. The Tribunal allowed proportionate reduction in duty and interest based on unfulfilled export obligations, as per a circular related to the EPCG Scheme. However, strict interpretation of notifications was emphasized, and relief was granted only to the extent supported by evidence of partial exports.

Issue 3: Exclusion of ADD from the value for SAD
The appellants argued against including ADD in the value for calculating SAD. The Tribunal analyzed relevant notifications and concluded that for the period in question, ADD was to be considered in the value for SAD calculation. The retrospective effect of amendments and budget circulars was considered, leading to the decision to include ADD in the value for SAD.

Issue 4: Interest rate applicability
Regarding the interest rate, the appellants claimed a lower rate based on a retrospective amendment. The Tribunal acknowledged the retrospective amendment and allowed the lower interest rate of 15% instead of the originally demanded 24%, considering the fairness of the appellants' claim.

Issue 5: Liability to penalty under Section 112
The appellants challenged the penalty imposition under Section 112, citing post-importation violation of exemption notification conditions. The Tribunal referred to a Supreme Court decision allowing penalties for such violations, leading to the affirmation of penalty liability based on the violation of notification conditions.

Issue 6: Interest liability on SCD, SAD, and ADD
The lower authority demanded interest on SCD, SAD, and ADD at 24%, which the appellants contested. The Tribunal noted the conditions of exemption from duties and interest under Notification No. 30/97 and ordered interest recovery at 15% in line with the retrospective amendment, ensuring consistency in interest rates across duties.

In conclusion, the appeal was partly allowed, remanding the matter for recalculation of duty and interest amounts, setting aside the penalty for redetermination, and granting the appellants an opportunity to provide authenticated proof of exports.