2024 (8) TMI 1001 - AT - Customs

Levy of ADD - whether the imported goods declared as Aluminium Foil Paper Ultrathin 5 5.5 microns falling under CTH 7607 and originating in or exported from China PR are in the thickness range of 5.5 microns to 80 microns so as to attracts ADD as per Notification No. 23/2017-Customs (ADD) dated 16.5.2017? HELD THAT - The Ld. Commissioner (Appeals) found that the said BIS standard is for 11 micron to 75 micron. Moreover, none of these test reports that came out are in favour of the appellant to prove that the imported goods thickness is less than 5.5 microns as declared by them in the bill of entry. Further, the ADD notification supra does not contain any clause with reference to such tolerance level for exemption and therefore she agreed with the department s plea that such tolerance level is applicable only for the purpose of clearance into the Indian market and it not applicable for the purpose of levy of ADD. It is found that the question of a defect of jurisdiction strikes at the very authority of the Proper Officer to pass any order, and such a defect cannot be cured even by consent of parties. The inherent lack of jurisdiction for issue of SCN if found, makes the subsequent order passed by the Authority void in law. The issue hence merits being disposed of first before any other issue is examined on merits. The discussion in the impugned order is cryptic and would require a more detailed treatment on the legal issues involved and merits a remand. The matter remanded back to the Commissioner of Customs (Appeals) for de novo decision - appeal disposed off by way of remand.

Summary

Issues:
1. Appeal against Order in Appeal C. Cus. II No. 316/2022 dated 24.5.2022.
2. Whether imported goods declared as 'Aluminium Foil Paper Ultrathin 5 - 5.5 microns' are subject to Anti-Dumping Duty (ADD) under Notification No. 23/2017-Customs.
3. Consideration of test reports and Indian Standard specifications.
4. Jurisdictional issue regarding the authority issuing Show Cause Notice (SCN).

Analysis:

Issue 1:
The appeal was filed by M/s. HLG Grading against an order passed by the Commissioner of Customs (Appeals - II), Chennai. The appellant had filed a Bill of Entry for clearance of Aluminium Foil Paper but was subjected to a differential demand, interest, penalty, and confiscation of goods. The appeal was rejected by the Commissioner (Appeals), leading to the present appeal.

Issue 2:
The main issue revolved around whether the imported goods, declared as 'Aluminium Foil Paper Ultrathin 5 - 5.5 microns,' were subject to Anti-Dumping Duty (ADD) under Notification No. 23/2017-Customs. The thickness of the imported goods was a crucial factor in determining the applicability of ADD, with multiple tests conducted to ascertain the thickness of the foil paper.

Issue 3:
The appellant raised arguments based on test reports and Indian Standard specifications to support their case. They highlighted discrepancies in the consideration of crucial communications and specifications by the Appellate Authority, alleging a grave error in rejecting their appeal without proper evaluation of the evidence presented.

Issue 4:
A jurisdictional issue was raised regarding the authority that issued the Show Cause Notice (SCN). The appellant contended that the authority lacked the competence to issue the SCN, citing legal judgments to support their argument. The discussion in the impugned order was deemed cryptic, necessitating a more detailed treatment of the legal issues involved and a possible remand for further examination.

The Tribunal found merit in remanding the matter back to the Commissioner of Customs (Appeals) for a fresh decision, considering the pending proceedings in the Honorable Supreme Court related to jurisdictional challenges. The appellant was directed to cooperate with the Appellate Authority for a timely resolution of the matter in accordance with the principles of natural justice.