2016 (8) TMI 576 - AT - Customs

Anti-dumping duty - Refund claim bill of entry assessment of ADD - Held that - the Respondent filed 8 Bills of Entry out of which seven were assessed under second check procedure. In the second check procedure the Bills of Entry are assessed on the basis of the importer s declaration without examining the goods which are examined at the time of clearance/giving out of charge from the docks. In this case when the goods were examined it was found that they were liable to ADD following which the Dy. Commissioner wrote a letter dated 12.06.2015 informing that as per examination order it was directed by the Assessing Officer regarding the payment of ADD manually before giving out-of-charge for clearance of goods. Regarding the 8th Bill of Entry No.6880702 Dy. Commissioner categorically informed that this Bill of Entry was cleared through RMS where it was mandatory for the importer or the customs broker to pay the ADD as per rule as it is a self-assessed document. The contention of the respondent that the ADD was paid without assessment is totally untenable. It was paid very much in the process of assessment and clearance before allowing out-of-charge and clearance of the goods was allowed only after the payment of ADD. Notification 70/2010-Cus dated 25.06.2010 set aside by CESTAT no authority to levy ADD Held that - three Member Bench of CESTAT despite having set aside Notification No.70/2010-Cus dated 25.06.2010 ordered (continued) levy and collection of ADD at the rates prescribed in the said Notification. As the said order was passed by a three Member Bench presided by the President CESTAT it should be respectfully followed. Appeal allowed decided in favor of revenue.

Summary

Issues:
1. Refund claims related to Anti-dumping duty (ADD) payment.
2. Disagreement between primary adjudicating authority and Commissioner (Appeals) on refund claims.
3. Assessment and payment of ADD on Bills of Entry.
4. Legal authority to levy ADD based on Notification 70/2010-Cus.

Analysis:
1. The respondent filed refund claims for ADD paid through separate challans, arguing that ADD was not assessed on Bills of Entry, treating it as a mere deposit. The primary authority rejected the claims, but the Commissioner (Appeals) allowed them. The Tribunal noted that the ADD was paid during the assessment and clearance process before out-of-charge, contradicting the respondent's claim of non-assessment. The Tribunal cited relevant case laws and upheld the assessment and payment of ADD before clearance, ultimately setting aside the Commissioner's decision and restoring the Order-in-Original.

2. The second contention revolved around the legal authority to levy ADD based on Notification 70/2010-Cus, which was set aside by CESTAT. The Tribunal acknowledged the force in the respondent's argument but refrained from analyzing it further. Citing a previous CESTAT order, the Tribunal noted that despite setting aside the notification, the levy and collection of ADD were upheld provisionally for a specified period. As the order was passed by a three-Member Bench, the Tribunal upheld the continuation of ADD collection as per the notification. Consequently, the Tribunal allowed Revenue's appeals, setting aside the previous decision and restoring the Order-in-Original.

3. The detailed analysis highlighted the procedural aspects of ADD assessment and payment on Bills of Entry, emphasizing that the duty was collected before clearance, contrary to the respondent's claims. The Tribunal's reference to case laws and examination procedures supported its decision to uphold the assessment and payment of ADD. Additionally, the Tribunal's interpretation of the CESTAT order regarding the provisional continuation of ADD collection provided the legal basis for its decision to allow Revenue's appeals and restore the original order.

4. Overall, the Tribunal's comprehensive analysis addressed the issues of refund claims, ADD assessment, and the legal authority to levy ADD based on the relevant notification. By considering procedural details, case laws, and previous orders, the Tribunal justified its decision to set aside the Commissioner's ruling and uphold the assessment and collection of ADD before clearance. The clarity provided in the judgment ensures a consistent application of legal principles and upholds the procedural integrity of duty assessment and payment processes.