2014 (5) TMI 523 - AT - Customs

Waiver of pre-deposit Rate of Anti-dumping duty - Import of rubber chemicals CBS - Notification No. 133/2008, dated 12-12-2008 Held that - Revenue is demanding duty in view of Notification dated 12-12-2008 on the ground that the anti-dumping duty imposed under the notification is to be liable with effect from date of imposition of provisional anti-dumping duty i.e. 5-5-2008 - During the import the anti-dumping duty as per the notification was nil - Hence demand is not sustainable. As per the Rule 21 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 if there is an increase of anti-dumping duty on the basis of final findings and in respect of the goods imported duty already imposed and collected the differential is not Leviable - In view of the above Rule at the time of import the rate of anti-dumping duty was nil - Therefore the pre-deposit of dues are waived and there shall be waiver of pre-deposit and stay against recovery during the pendency of appeal stay granted.

Summary

Issues:
1. Waiver of pre-deposit of duty based on anti-dumping duty imposition.
2. Interpretation of Customs Tariff Rules regarding differential anti-dumping duty collection.

Analysis:
Issue 1: The appellant sought waiver of pre-deposit of duty amounting to Rs. 10,82,700 along with interest, related to the import of rubber chemicals CBS from China. The appellant argued that during the import period, the anti-dumping duty was 'nil' as per Notification No. 61/2008-Cus., but was subsequently imposed at 40.10 per k.g. through Notification No. 133/2008. The revenue demanded duty from the date of provisional anti-dumping duty imposition, while the appellant contended that the demand was not sustainable as the duty was 'nil' during the import. The appellant relied on Rule 21 of Customs Tariff Rules, 1995, stating that any increase in duty based on final findings, when duty has already been imposed and collected, is not leviable. The Tribunal found merit in the appellant's argument, citing Rule 21, and waived the pre-deposit of dues, granting a stay against recovery during the appeal.

Issue 2: The revenue reiterated the lower authority's findings regarding the duty demand. However, the Tribunal, after examining Rule 21 of Anti-dumping Rules, 1995, noted that if the final anti-dumping duty is higher than the provisional duty collected, the differential should not be collected from the importer. Conversely, if the final duty is lower, a refund is applicable. In this case, since the anti-dumping duty was 'nil' during the import period, the Tribunal concluded that the pre-deposit of dues should be waived based on the provisions of Rule 21. Consequently, the Tribunal pronounced the order for waiver of pre-deposit and a stay against recovery during the appeal process.