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TMI Blog2004 (3) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial Trading Co. Ltd., China. The Anti-dumping duty (ADD for short) @ US $ 19.22/-PMT was levied at the time of provisional assessment in terms of Notification No. 69/2000-Cus., dated 19-5-2000. The said Anti-dumping duty notification prescribed rate of Anti-dumping duty @ US $ 19.22/- PMT, for exporter of China namely M/s. Shanxi Coal Import Export Group Corporation (Minmetal Group) from China (P.R.), appearing at Sl. No. 3 therein. It was noticed that the Certificate of origin and other documents like invoice etc. was in the name of exporter from China M/s. Shanxi Minmetals Industrial Trading Co. Ltd., China. 3. Therefore, a show cause notice was issued to the appellant as to why the assessment should not be finalized charging anti-dumping duty @ US $ 24.95/- and why differential duty amounting to Rs. 36,00,076/- (Rs. 34,61,630/- Anti-dumping duty + Rs. 1,38,466/- as S.A.D.) as worked out should not be levied and recovered from them along with interest @ 24% from the date of provisional assessment till the date of payment of duty. 4. On the basis of representation of the appellant, the adjudicating authority vide his Order-in-Original No. 8/DC/CUS/GPPL/01-02, dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roup Corporation (Minmetals Group) and the export business of Shanxi Coal Import Export Group Corporation (Minmetals Group) is handled/routed through the said Shanxi Minmetals Industrial Trading Company Limited, China and its Group Companies. There is no Company by the name of Shanxi Coal Import Export Group Corporation (Minmetals Group). Only Shanxi Minmetals Industrial Trading Company Limited is authorized to export coke to Indian market in Shanxi province . 6. The said facts have been clearly mentioned in the above referred Certificate of Origin as under : Goods have been exported through Shanxi Minmetals Group . 7. This apart, reliance was also placed by the appellant on a Press Note published in The Indian Express dated 8-4-1999 to the effect that China had announced drastic changes in export policy of Metcoke trade with India by selecting for the first time 7 Leading Exporters which would represent a United Front in the biggest Coke Market. Shanxi Minmetals Industrial Trading Company Limited is one of the Exporters selected for the said purpose. 8. The aforesaid clarification/certification as well as the Press Note and other documents clearly establish that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Export Group Corporation (Minmetals Group). This was only a Group name. The Company authorized to export Coal to India was Shanxi Minmetal Industrial Trading Co. Ltd. This is a part of the above group. This is the only Company authorized to export Coal to India in Shanxi Minmetal. (i) Letter of the exporter dated 14-12-2001. (ii) Certificate of origin. (iii) Indian Express press note published on 8-4-1999. In the said Notification, it is mentioned that Shanxi Minmetal Industrial Trading Corp. Ltd. is one of them. (iv) MOU signed between Additional Secretary, Ministry of Steel, GOI VP China Chambers of Commerce of Metals on 26-8-2002. It gives names of companies authorized to export coal to India. (v) Introduction of company Shanxi Minmetals Trading Corpn. downloaded from Internet. The advocate also pleaded that there was no provision for interest at the relevant time. 12. The Superintendent stated that the Adjudication Order has given the findings and it cannot be called non-speaking order. On evidence, he stated that the letter of the exporter is contradictory as firstly they say that there is no company by the name mentioned in the notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Xiacheng Import Export Corporation US $ 24.95 5. China North Industries Corporation. US $ 22.69 6. Shanghai Pacific Chemicals (Group) Corporation Ltd. US $ 19.22 7. All other exporters US $ 24.95 and that subject to these modifications, the final findings, dated 27th August, 1998 of the Designated Authority are confirmed and that the corrigendum, dated 2nd September, 1998 is set aside. AND WHEREAS the Designated Authority has accepted the above judgment of the Customs, Excise and Gold Control Appellate Tribunal. Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 9A read with sub-section (6) of Section 3 of the said Customs Tariff Act and sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962). and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 81/98-Customs, dated the 27th October, 1998 [GSR 644 (E), dated the 27th October, 1998], except as respects things done or omitted to be done before such supersession, the Central Government hereby imposes on metcoke falling under Heading No. 27.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department interprets the said entry of the Notification literally, then the entry would become redundant or otiose. Such an interpretation should be avoided. They have relied upon several decisions for this proposition. They have further claimed that in case of ambiguity in the taxing statute, the benefit of such an ambiguity must go to the assessee. They have relied on the decision of the High Court of Madras in the case of Advani Oerlikon v. ACCE reported in 1993 (63) E.L.T. 427. Further, they plead that the burden of proving that an assessee is liable to pay tax or duty is on the department and in the instant case, the department has failed to discharge its burden of proving that the appellant was not covered under the said Sl. No. 3 of the Notification and was covered under the residuary Sl. No. 7. They relied on the decision of Hon ble Gujarat High Court in the case of State of Gujarat v. Raipur Mfg. Co. reported in 1967 (19) STC 1 and the decision of Bombay High Court in the case of Sandoz India v. UOI reported in 1980 (6) E.L.T. 696. On the issue of payment of interest, the appellant submitted that the demand of interest is illegal as there was no provision for payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oke, coal mining machinery, coal byproducts, metallurgical and chemical products, etc. Over the two decades, relying on the rich coal resources in Shanxi and the highly effective management, our company went into various business fields, and has made considerable achievements, making our company a comprehensive group combining technological study, industrial production and trading activities. A complete system of coal producing, processing, storing, transporting, selling and post-sale service has been established. The handling capability of export coal has reached more than 17 million tonnes each year. The quantity and trade volume of export coal, increased year by year, has amounted to 68 million tons. For nine years, our company has ranked among the China s 500 largest foreign trade enterprises. With the economic strength getting strong increasingly, we have set up 20 subsidiaries and branches home and abroad and established broad and stable business relations with customers spreading over 20 countries and regions, forming perfect domestic supply and international sales channels and information service network. Facing the fiercely competitive global market, we are determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h authorized seven Chinese companies to export Coke to India. The said report shows that the following companies were authorized to export Coal to India - (i) The China Metallurgical Import and Export Hebei Company, (ii) The China National Coal Industries Import and Export Group Corporation, (iii) The China North Industries Corporation, (iv) The Minmetals Townlord Technology Company, (v) The Shanghai Coking and Chemical Corporation, (vi) The Shanxi Minmetals Industrial and Trading Company, and (vii) Sinochem International Company. 22. It is very clear that not all of these companies are covered by the Notification which has exempted certain companies from payment of the normal ADD of US $ 24.95/-. Therefore, even if the appellant s name appear in the said MOU, that does not entitle them to claim concessional rate of ADD. 23. There is yet another reason for rejecting the contention of the appellant. The issue of imposition of ADD on Coke imported from China was raised before the Tribunal earlier as is evident from the wordings of the Notification itself. Even at that stage, none of the parties raised this issue that there is no company by the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovince of China, only one company is authorized/permitted to export Coke to India i.e. Shanxi Minmetals Industrial and Trading Co. Ltd. is not relevant for the purpose of deciding whether the appellant is covered by one of the companies mentioned in the list from Sl. Nos. 1 to 6 of the impugned Notification. They have not denied that the name of the supplier does not appear in the Notification. They have not produced any evidence to show that the company mentioned at Sl. No. 3 of the list in the Notification is a part of the supplier company i.e. M/s. Shanxi Minmetals Industrial and Trading Co. The information available at the website of the supplier indicates that they have different divisions for handling business of different commodities. It does not show that the supplier is only a group and not a separate company. (iii) There is no quarrel over their claim that the interpretation which renders a legislation redundant or meaningless should be avoided. However, in the instant case, considering plain meaning of the entry at Sl. No. 3 of the list of companies in the Notification does not make the legislation/Notification redundant. The decisions referred to by them are theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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