2024 (7) TMI 1266 - AT - Customs

Levy of ADD - self-assessment done by the appellant under section 17(1) of the Customs Act was rejected and re-assessment was done under section 17(4) - N/N. 12/2021-Customs (ADD) dated 05.03.2021 - HELD THAT - It is not in dispute that what was imported by the appellant, as stated in the Bill of Entry, is Color Toner Black . Though, it is correct that the Anti-Dumping Notification dated 05.03.2021, levied anti-dumping duty on black toner in powder form , but the Notification also mentions that black toner in powder form would exclude a color toner - It would be seen that a color toner is excluded from levy of anti-dumping duty under the Notification dated 05.03.2021. A color toner has four colors CMYK. K denotes black color. What was imported by the appellant was black color toner for color printers and not a black toner for black and white printers which, as noticed above, attracted anti-dumping duty. The Assistant Commissioner merely noticed that the goods imported by the appellant were black toner in powder form and completely failed to appreciate that the Anti-Dumping Notification itself stipulated that black toner in powder form would exclude a color toner. This fact was specifically pleaded by the appellant in reply to the query raised by the Assistant Commissioner. The Commissioner (Appeals) observed that the distinction sought to be drawn by the appellant was artificial in nature and also failed to appreciate that the Anti-Dumping Notification itself excluded a color toner from levy of anti-dumping duty. The Commissioner (Appeals) also fell in error in observing that in common parlance color toner is different from black toner . A color toner has four different color toners, namely CMYK, and a black color toner is one of the four color toners constituting a color toner - thus, it has to be held that black color toner would not be subjected to levy of anti-dumping duty under the Notification dated 05.03.2021. The order dated 17.11.2022 passed by the Commissioner (Appeals) cannot be sustained and is set aside - Appeal allowed.

Issues Involved:
1. Whether the imported goods attract anti-dumping duty under Notification No. 12/2021-Customs (ADD) dated 05.03.2021.
2. Whether the re-assessment order passed by the Assistant Commissioner is valid.
3. Whether the speaking order was passed within the statutory period as required under Section 17(5) of the Customs Act, 1962.

Issue-Wise Detailed Analysis:

1. Anti-Dumping Duty Applicability:
The primary issue was whether the imported goods, declared as 'Printer Color Toner', attract anti-dumping duty under Notification No. 12/2021-Customs (ADD) dated 05.03.2021. The appellant argued that the imported goods were color toners, which include black color toner as part of CMYK (Cyan, Magenta, Yellow, and Black) toners, and therefore, should be excluded from anti-dumping duty as per the Notification. The Assistant Commissioner, however, re-assessed the goods as 'black toner in powder form', which attracts anti-dumping duty, and this decision was upheld by the Commissioner (Appeals).

2. Validity of Re-Assessment Order:
The Assistant Commissioner rejected the self-assessment done by the appellant under Section 17(1) of the Customs Act and re-assessed the goods under Section 17(4), imposing anti-dumping duty @ USD 1458 per MT. The Assistant Commissioner noted that the goods were 'black toner in powder form' and did not accept the appellant's contention that it was part of color toner. The Commissioner (Appeals) supported this view, stating that the distinction made by the appellant was artificial and that the Notification did not specify that black toner must be used for monochromatic printing only.

3. Timeliness of the Speaking Order:
The appellant contended that the speaking order was not passed within the statutory period of fifteen days from the date of re-assessment of the Bill of Entry as required under Section 17(5) of the Customs Act. This procedural lapse was argued as a ground for setting aside the re-assessment order.

Judgment Summary:

Anti-Dumping Duty Applicability:
The Tribunal found that the imported goods were indeed 'black color toner for color printers' and not 'black toner for black and white printers'. The Notification dated 05.03.2021 explicitly excludes 'color toner' from the levy of anti-dumping duty. The Assistant Commissioner and the Commissioner (Appeals) failed to appreciate this exclusion, leading to an erroneous imposition of anti-dumping duty.

Validity of Re-Assessment Order:
The Tribunal held that the re-assessment order by the Assistant Commissioner was incorrect as it did not consider the exclusion of color toner from anti-dumping duty under the Notification. The Assistant Commissioner and the Commissioner (Appeals) misinterpreted the scope of the Notification, which clearly excludes color toner, including black color toner used in color printers.

Timeliness of the Speaking Order:
The Tribunal did not specifically address the timeliness issue in detail, focusing instead on the substantive error regarding the applicability of anti-dumping duty.

Conclusion:
The Tribunal concluded that black color toner would not be subjected to anti-dumping duty under the Notification dated 05.03.2021. Consequently, the order dated 17.11.2022 passed by the Commissioner (Appeals) was set aside, and the appeal was allowed with consequential relief.

Order Pronounced:
The judgment was pronounced on 23.07.2024, setting aside the impugned order and allowing the appeal.

← Previous Next →