2019 (2) TMI 1370 - AT - Customs

Jurisdiction - Application for transfer of this appeal to the ADD Bench - whether the issue falls within the jurisdiction of this Tribunal? - Held that - The Department has not been able to say whether the Miscellaneous Application was accepted at Principal Bench, New Delhi or whether numbered. Interestingly, this appeal is filed by the Department before this Tribunal. They cannot object to the jurisdiction of the Tribunal in an appeal filed by them. In any case, if they have any grievance as to lack of jurisdiction, the correct procedure is to withdraw the appeal and file it before the Bench which has jurisdiction. They cannot take the shelter of filing a transfer application and overcome the hurdle of limitation - the contention of the Ld. AR that they have filed an application for transfer and the matter has to be transferred to ADD Bench, New Delhi, deserves to be disregarded in toto - this is a fit case within the jurisdiction of the Tribunal. Imposition of ADD - import of one second-hand EVA linear type injection moulding machine with accessories - N/N. 47/2009 - case of respondents are that neither the findings of the Designated Authority nor the Notification in question had envisaged levy of ADD on used machinery and that therefore ADD is not leviable on the subject goods - Held that - The purpose and intent of the Anti-Dumping Duty is recognized and permitted by the World Trade Organization. Dumping is said to occur when goods are exported by a country to another country at a price lower than its normal value and that causes injury to the domestic industry. Anti-Dumping measures rectify the situation arising out of such dumping of goods and its trade distortive effect. This is part of the General Agreement on Tariffs and Trade (GATT), 1994, commonly known as The Anti-Dumping Agreement - Ld. Advocate is correct in his assertion that the legal framework for Anti-Dumping measures are enshrined in Sections 9A, 9B and 9C of the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 framed thereof. It is evident that the Anti-Dumping measures are targeted at goods which are dumped by a foreign country and as a resultant, the domestic industry is adversely affected. Obviously, the domestic industry would only be concerned about the products that it releases into the market, namely, the new items thereof and not the second-hand sales of the products that they have sold earlier. Comparison has to be of two comparables, namely, of new domestic products against new imported goods, as there cannot be a comparison between new domestic output and second-hand imported goods. Once we recognize that the basic purpose of the ADD is to serve as a price leveller to protect the domestic industry, the same intent and purpose is served even in case of second-hand machinery imports by way of re-appraisement of the declared value, based on the present condition of the imported item, by the Chartered Engineer - the import of second-hand machinery cannot be subjected to imposition of Anti-Dumping Duty by the particular Notification, which evidently would only be applicable for the import of new machinery or goods listed therein. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Jurisdiction of the Tribunal regarding transfer of appeal to Anti-Dumping Duty Bench.
2. Applicability of Anti-Dumping Duty on imported second-hand machinery.

Issue 1 - Jurisdiction of the Tribunal regarding transfer of appeal to Anti-Dumping Duty Bench:
The Department appealed against the Order passed by the Commissioner (Appeals) to the Tribunal. The Department sought transfer of the appeal to the Anti-Dumping Duty (ADD) Bench at Headquarters, New Delhi. However, the Tribunal found that the Department's application for transfer lacked outcome and clarity. The Tribunal emphasized that the Department cannot challenge the Tribunal's jurisdiction in an appeal filed by them. The Tribunal concluded that the issue fell within its jurisdiction, disregarding the Department's request for transfer to the ADD Bench.

Issue 2 - Applicability of Anti-Dumping Duty on imported second-hand machinery:
The case involved the import of a second-hand EVA linear type injection moulding machine. The Department argued that even second-hand machinery listed in the Anti-Dumping Notification should be subject to Anti-Dumping Duty. On the contrary, the assessee contended that the Anti-Dumping Notification covered only new machinery, not second-hand ones. The Tribunal analyzed the legal framework for Anti-Dumping measures and highlighted the purpose of Anti-Dumping Duty to protect domestic industries from dumped goods. The Tribunal reasoned that the intent of the Anti-Dumping measures was to compare new domestic products with new imported goods. Therefore, the Tribunal held that imposing Anti-Dumping Duty on re-appraised second-hand machinery would be unjustified and against the intended purpose of the Anti-Dumping Notification. The Tribunal dismissed the Department's appeal, stating that the Anti-Dumping Duty should not apply to imported second-hand machinery as per the specific Notification's scope and purpose.

In conclusion, the Tribunal upheld its jurisdiction over the appeal and ruled against the applicability of Anti-Dumping Duty on imported second-hand machinery, emphasizing the need to protect domestic industries as per the Anti-Dumping measures' intended purpose.