2013 (1) TMI 203 - AT - Customs

Anti-dumping - Customs Tariff Heading 3904 21 10 - Poly Vinyl Chloride Paste Resin - Emulsion PVC Resin - PVC Suspension Resin - Customs Notification No. 104/2004 dated 7-10-2004 - Customs Notification No. 70/2010 dated 25-6-2010 Classification given by Customs are only indicative or dispositive Section 9A(5) of the Customs Tariff Act, 1975 Designated Authority initiated an Anti-dumping Investigation concerning imports of PVC Paste Resin falling under CTH 3904 22 10 - D.A. after investigation issued Final Finding and stated that correct classification of PUC is 3904 21 10 - Ministry of Finance acting on the recommendation of D.A. imposed anti-dumping duty on products of CTH 3904 21 10 by notification 104/2004 Sunset Review - D.A. suo motu initiated the Sunset Review of the anti-dumping duty imposed on products of CTH 3904 21 10 for examining whether duty imposed vide Notification 104/2004 can be extended or not - D.A. recommended imposition of anti-dumping duty on products of CTH 3904 22 10 - Fixed duty was recommended in SSR as opposed to reference price based duty on notification 104/2004 - Ministry of Finance vide Notification No. 70/2010-Cus. imposed anti-dumping duty on goods falling under the CTH 3904 22 10 Held that - Final Findings of the D.A. is vitiated not only for the reason that the anti-dumping duty which was imposed on PVC Paste Resin falling under Heading 3904 21 10 during the original investigation has been recommended to be imposed on PVC Paste Resin falling under 3904 22 10 after the sunset review, there has also been a breach of natural justice by not giving adequate time and opportunity to the appellants to put forth evidence to support their claims before the D.A Further, the Ministry of Finance, Department of Revenue has imposed fresh anti-dumping duty on Plasticized PVC Paste Resin falling under Heading 3904 22 10 on 25-6-2010 instead of continuing the levy which was earlier imposed on Non-plasticized PVC Paste Resin falling under Heading 3904 22 10. Hence the said notification is in contravention of the provisions of Section 9A(5) of the Customs Tariff Act, 1975 The amending Notification dated 16-1-2012 has included two more Tariff items namely 3904 21 10 and 3904 21 90 and such inclusion is not supported by a recommendation from the D.A. Therefore inclusion of these fresh items is in contravention of Rule 18 of the AD Rules, 1995 which requires the Central Government to levy anti-dumping duty only on the articles covered by the Final Finding of the D.A., and it also specifies a time limit of three months from the date of the Final Findings. Hence, set aside the impugned Final Findings of the D.A. dated 26-4-2010 as well as the Customs Notification No. 70/2010 dated 25-6-2010 along with amending Notification No. 8/2012 dated 16-1-2012 and remand the matter to the D.A

Issues Involved:
1. Validity of Anti-Dumping Duty Imposition
2. Typographical Error in Final Findings
3. Scope of Product Under Consideration
4. Compliance with Customs Tariff Act and AD Rules
5. Principles of Natural Justice
6. Procedural Errors and Amendments

Detailed Analysis:

1. Validity of Anti-Dumping Duty Imposition:
The appellants challenged the imposition of anti-dumping duty on PVC Paste Resin under Customs Tariff Heading (CTH) 3904 22 10, arguing that the duty was initially imposed on non-plasticized PVC Resin under CTH 3904 21 10. The tribunal found that the Central Government had no power to impose anti-dumping duty on PVC Paste Resin falling under a different classification 3904 22 10 in 2010, as this was not a continuation of the original duty but a fresh imposition, which is not permissible under Section 9A(5) of the Customs Tariff Act, 1975.

2. Typographical Error in Final Findings:
The D.A. claimed a typographical error in the 2004 Final Findings, stating the correct classification should have been 3904 22 10. However, this was inconsistent with the Ministry of Finance's subsequent actions, which included CTH 3904 21 10 in the anti-dumping notification. The tribunal noted the state of confusion regarding the customs classification in the D.A.'s findings, which undermined the validity of the anti-dumping duty imposed.

3. Scope of Product Under Consideration:
The appellants argued that the scope of the product under consideration (PUC) was improperly expanded. The tribunal agreed, noting that the original anti-dumping duty was imposed on non-plasticized PVC Resin (CTH 3904 21 10), and the sunset review improperly extended this to plasticized PVC Resin (CTH 3904 22 10). The tribunal emphasized that anti-dumping duty can only be continued on the same goods, not newly classified ones.

4. Compliance with Customs Tariff Act and AD Rules:
The tribunal found that the Ministry of Finance's actions violated Rule 18 of the AD Rules, 1995, which requires anti-dumping duty to be imposed only on articles covered by the D.A.'s Final Findings. The inclusion of new tariff items (3904 21 90) in the 2012 amendment was not supported by the D.A.'s recommendations and was beyond the mandate of the law.

5. Principles of Natural Justice:
The appellants claimed a violation of natural justice, as they were not given adequate time to present evidence. The tribunal found merit in this claim, noting that the D.A. had not provided sufficient opportunity for the appellants to support their submissions, thus breaching natural justice principles.

6. Procedural Errors and Amendments:
The tribunal identified significant procedural errors, including the improper inclusion of CTH 3904 21 90, which does not cover PVC Paste Resin, and the issuance of amendments without proper recommendations from the D.A. The tribunal criticized the Ministry of Finance for making unilateral amendments based on representations from the domestic industry without notifying other interested parties.

Conclusion:
The tribunal set aside the impugned Final Findings of the D.A. dated 26-4-2010, the Customs Notification No. 70/2010 dated 25-6-2010, and the amending Notification No. 8/2012 dated 16-1-2012. The matter was remanded to the D.A. for fresh consideration, ensuring a reasonable opportunity for all concerned parties to be heard. The tribunal ordered the continuance of the anti-dumping duty at the previous rate on PVC Paste Resin falling under CTH 3904 21 10 on a provisional basis for six months, directing the D.A. and the Ministry of Finance to conclude the remand proceedings and issue a fresh notification within that period. The appeal was allowed, and the miscellaneous application was disposed of accordingly.

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