2022 (2) TMI 682 - AT - Customs

Levy of Anti-Dumping duty - clearance of goods which have been imported and warehoused before the issue of Notification imposing Anti-Dumping Duty is issued - Confiscation - interest - penalty - HELD THAT - It is very clear that Section 15 applies squarely to goods warehoused under Section 68 as it applies to goods presented for clearance for home consumption under Section 46 of the Customs Act. Sub-section (8) of Section 9A of the Customs Tariff Act, 1975 which provides that provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. In view of Section 3 of the Customs Tariff Act, 1975, Antidumping Duty is to be construed as Customs duty and therefore in view of the amendment that was carried out in 2009 all the provisions of Customs Act and the Rules made thereunder are squarely applicable to Antidumping Duty and as such in case of warehoused goods duty applicable as on the date of clearance from warehouse is to be recovered in terms of Section 15 of the Customs Act, 1962 - ratio of case of COMMISSIONER OF CUSTOMS, CHENNAI VERSUS SUJA RUBBER INDUSTRIES 2002 (1) TMI 174 - CEGAT, CHENNAI and INDO RAMA SYNTHETICS (I) LTD. VERSUS COMMISSIONER OF C. EX., MUMBAI 2003 (2) TMI 109 - CEGAT, MUMBAI are not applicable as the same are rendered before the amendment in sub-section (8) of Section 9A of Customs Tariff Act, 1975 in 2009. The appellant-importers have argued that as they have warehoused the goods that have been put to the disadvantage forcing the importers to have imported during intervening period i.e. after the goods have been imported and warehoused and the same are cleared from the warehouse. However, it is found that taxation does not work on the principle of the equity, if the appellant has availed the facilities under the warehousing provisions, they have to bear with the associated disadvantages, if any. It is not open for the appellant-importer to claim best of both ends - the observations of Commissioner in distinguishing between import and importation are at best superfluous and do not in any way help or harm the conclusions arrived at. Levy of Interest - HELD THAT - When all the provisions of Customs Act are made applicable to Antidumping Duty, Section 28 is also squarely applicable. Therefore, there are no infirmity as far as demand of duty is concerned. However, we hold that interest, if any, for the delayed payment, interest is to be paid from the date of ex-bonding by the appellant-importer as payment of interest is consequential to the demand of duty in respective manner. Confiscation - imposition of redemption fine - HELD THAT - The confiscation and imposition of redemption fine are not warranted as here was nothing that the appellant-importers have consciously suppressed or misrepresented. If ADD escaped assessment, the department is free to demand the same as per provisions of Customs Act, 1962. However, for the same reason, goods cannot be confiscated and penalty cannot be imposed. Therefore, the confiscation of the goods, imposition of redemption fine and various penalties are set aside. Appeal disposed off.

Summary

Issues Involved:
1. Leviability of Anti-Dumping Duty (ADD) on warehoused goods imported before the notification imposing ADD.
2. Justification for confiscation and imposition of penalties.
3. Demand for interest under Section 28AA of the Customs Act.

Detailed Analysis:

1. Leviability of Anti-Dumping Duty (ADD) on Warehoused Goods Imported Before Notification:
The primary issue was whether ADD is applicable to goods that were imported and warehoused before the issuance of the notification imposing ADD. The Tribunal analyzed relevant sections, including Section 9A of the Customs Tariff Act, 1975, and Sections 15 and 17 of the Customs Act, 1962. It concluded that Section 15 applies to warehoused goods, meaning the duty applicable at the time of clearance from the warehouse is relevant. Sub-section (8) of Section 9A of the Customs Tariff Act, 1975, integrates the provisions of the Customs Act, 1962, making them applicable to ADD. Therefore, the Tribunal upheld the levy of ADD on the goods in question, aligning with the Commissioner’s interpretation that importation attains finality only when the ex-bond bill is given out of charge by the proper officer.

2. Justification for Confiscation and Imposition of Penalties:
The Tribunal found that the confiscation and imposition of penalties were not warranted. It was noted that the appellant-importers did not consciously suppress or misrepresent information. If ADD escaped assessment, the department is entitled to demand the same as per the Customs Act, 1962. However, this does not justify confiscation and penalties. The Tribunal set aside the confiscation of goods, redemption fine, and various penalties, indicating that the department’s actions were excessive given the circumstances.

3. Demand for Interest under Section 28AA of the Customs Act:
The Tribunal addressed the demand for interest under Section 28AA, concluding that interest is to be paid from the date of ex-bonding by the appellant-importer. This is consequential to the demand for duty, which was upheld. The Tribunal partially allowed the appellant-importer's appeal by upholding the duty demand and interest but setting aside the confiscation and penalties. The Revenue’s appeal was dismissed except for the levy of interest on ADD for goods cleared under BE No. 3056014 dated 31.08.2017.

Conclusion:
The Tribunal’s judgment clarified the applicability of ADD on warehoused goods, emphasizing the finality of importation upon clearance from the warehouse. It also highlighted that while the department can demand unpaid ADD, confiscation and penalties require evidence of conscious suppression or misrepresentation, which was not present in this case. The decision balanced the enforcement of duty laws with fairness in penalizing importers.