2009 (6) TMI 489 - AT - Customs

Anti-dumping duty- landed value- Notification No. 8/98-Cus- The appellant imported 1000 MTs of Chinese Metallurgical Coke and cleared the same under DEEC licence and no Customs duty was paid. However, anti-dumping duty (ADD) was leviable on the imported coke under Notification No. 8/98-Cus., which stipulates that for calculating the liability of ADD, the landed value shall include all duties of Customs except those liabilities under Section 3, 3A, 8B and 9A of the Customs Tariff Act, 1975 (CTA). Since the clearance had been allowed, adding the Customs duty liability under Section 12 of the Customs Act, landed value was revised without adding the duty element and the Appellant have been held liable to pay differential ADD of Rs.5,43,000/-. The Appellant filed appeal against this decision. Revenue also is in appeal in view of the fact that Commissioner (Appeals) held that no interest is payable. Held that- We find that the notification clearly defined in the Explanation as to what is the landed value, it clearly stated that the landed value is assessable value as determined under the Customs Act, 1962 and includes all duties except those which are specified therein. The Commissioner (Appeals) has rightly observed that the assessable value is determined under Section 14 of Customs Act, 1962 and the assessable value under Section 14 of Customs Act, 1962 does not include any of the duties. Therefore, the landed value as defined in the notification cannot include the Customs duty leviable. As regards claim of levy of ADD amounts to discrimination, the Commissioner (Appeals) has rightly taken note of the Notification No. 41/97-Cus., dated 30-4-97 which provides exemption from ADD and has rightly observed that the appellants had not claimed exemption under that notification. We do not find any infirmity in the order of the Commissioner (Appeals). Further held for interest that- there is no provision for charging of interest on AD as the provision for charging of interest is in respect of duty determined under Section 28 of the Customs Act. Thus the appeal filed by the Revenue has no merit. In the result, both the appeals filed by Revenue as well as Appellant are rejected.

Summary

Issues:
Interpretation of Notification No. 8/98-Cus regarding the calculation of anti-dumping duty (ADD) on imported goods under DEEC license.
Claim of discrimination between importers paying Customs duty and those importing under advance licenses.
Question of interest payable on the confirmed ADD amount.

Interpretation of Notification No. 8/98-Cus:
The case involved M/s. K.C. Cement Industries appealing against the imposition of differential ADD of Rs.5,43,000 due to the clearance of Chinese Metallurgical Coke under DEEC license without paying Customs duty. The issue revolved around the correct interpretation of Notification No. 8/98-Cus, which specifies that the landed value for calculating ADD should include all duties of Customs except those under specific sections of the Customs Tariff Act, 1975. The appellant argued that the duty foregone under the DEEC license should also be added to the landed value, while the Revenue contended that only paid duties could be included. The Commissioner (Appeals) correctly determined that the assessable value under Section 14 of the Customs Act, 1962 does not include any duties, hence Customs duty cannot be added to the landed value for calculating ADD.

Discrimination Claim and Notification No. 41/97-Cus:
The appellant raised the issue of discrimination between importers paying Customs duty and those importing under advance licenses, as ADD levied on the latter equaled the Customs duty, negating the benefits of advance licenses. However, the Commissioner (Appeals) noted that Notification No. 41/97-Cus provides exemption from ADD, which the appellants had not claimed. This observation supported the decision that there was no discrimination in the imposition of ADD between different importers based on their duty payment status.

Interest Payable on Confirmed ADD:
Regarding the question of interest payable on the confirmed ADD amount, the Commissioner held that interest is not applicable as ADD is charged under Section 9A of the Customs Tariff Act, not under Section 12 of the Customs Act, 1962. The absence of provisions for charging interest on ADD, coupled with the specific application of Customs Act provisions to ADD only from a later date, led to the conclusion that no interest was payable by the appellant. This decision was supported by legal precedents and was upheld by the Tribunal, resulting in the rejection of appeals filed by both the Revenue and M/s. K.C. Cement Industries.