2009 (6) TMI 272 - AT - Customs

Revenue is against the order of the Commissioner (Appeals) holding that the respondent (assessee) is not liable to pay anti-dumping duty on Poly Vinyl Chloride (PVC) imported from the People s Republic of China and cleared under Bill of Entry dated 23-1-2008. - Notification No. 11/08-Cus. dated 23-1-2008 imposing anti-dumping duty on Poly Vinyl Chloride (PVC) - There is no evidence in this case of any advance Bill of Entry having been filed by the importer and therefore there is no question of the proviso to sub-section (1) of Section 15 of the Customs Act being applied. What is applicable is Section 15(l)(a) of the Act according to which the rate of duty and tariff valuation shall be the rate and valuation in force on the date on which the Bill of Entry was presented under Section 46 of the Customs Act. The Bill of Entry in this case was presented admittedly on 23-1-2008 and therefore Notification No. 11/2008-Cus. dated 23-1-2008 cannot be kept out of reckoning on the ground mentioned by the lower appellate authority. - In the result the order of the Commissioner (Appeals) is set aside and this appeal and cross-objection are allowed by way of remand

Summary

Issues:
- Appeal against order holding respondent not liable to pay anti-dumping duty on PVC imported from China
- Classification of goods under Customs Tariff Act
- Applicability of Section 15 of the Customs Act for determining anti-dumping duty liability
- Examination of duty liability from a classification angle

Analysis:
1. The appeal was filed by the Revenue against the Commissioner (Appeals) order stating the respondent was not liable to pay anti-dumping duty on PVC imported from China. The goods were classified under sub-heading 3904 10 90 in the Bill of Entry, and ADD was levied based on Notification No. 11/08-Cus. dated 23-1-2008. The lower appellate authority set aside the assessment order, stating ADD was not applicable as the goods were imported before the notification date. The Revenue argued that ADD liability should be determined based on the date of filing the Bill of Entry, which was on 23-1-2008 when the notification was in effect.

2. The assessee contended that the notification applied to PVC classified under 3904 10 90 from China, requiring classification under 3904 21 for ADD levy. This argument was not considered by the lower appellate authority, indicating a failure to examine the case properly. Moreover, it was noted that no advance Bill of Entry was filed, making Section 15(1)(a) of the Customs Act applicable, which states the duty rate is determined based on the date of Bill of Entry presentation. As the Bill of Entry was presented on 23-1-2008, Notification No. 11/2008-Cus. dated 23-1-2008 should have been considered.

3. The Commissioner (Appeals) decision was found to be wrongly decided as the relevant provisions were not applied correctly. The judgment was set aside, and the appeal and cross-objection were allowed for a fresh decision by the Commissioner (Appeals) on all raised issues. It was emphasized that the assessee must be given a fair opportunity to present their case during the reconsideration process to ensure a just outcome.