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TMI Blog2007 (8) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Abhinav Ceramic imported one consignment of tiles prior to 1-11-02 while all the other appellants imported tiles subsequent to 1-11-02 and no imports subsequent to 1-5-03 took place by any of the appellants. Notification No. 50/02-Cus. was issued by the Central Government pursuant to the provisional findings dated 3-12-2001 of the Designated Authority in the Ministry of Commerce. Pursuant to the final findings dated 5-2-03, anti dumping duty on tiles imported from UAE/China was imposed vide Notification No. 73/03-Cus. dated 1-5-03 which further provided that the anti dumping duty imposed thereunder shall be levied with effect from 2-5-02 i.e. the date of levy of provisional anti dumping duty. Pursuant to the above, demand cum show cause notices were issued under Sec. 28 of the Customs Act 1962, for recovery of duty on tiles imported by all the appellants; demands were confirmed by the Dy. Commissioner of Customs whose orders were upheld by the Commissioner (Appeals). Hence, these appeals. 4. We have heard both sides and record our findings hereunder : The first plea raised by the appellants is that Section 18 of the Customs Act relating to provisional assessment has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Section 15 was borrowed under Section 9A(8) at the material time, for the purpose of levy and collection of anti dumping duty. Paras 23 and 25 of the decision which are relevant, are reproduced below :- "23........In other words, a situation contemplated under one statute cannot, in absence of any express or clear intendment, be made to apply or be given effect to while applying the provisions of another statute. 25. While dealing with a taxing provision, the principle of Strict Interpretation should be applied. The Court shall not interpret the statutory provision in such a manner which would create an additional fiscal burden on a person. It would never be done by invoking the provisions of another Act, which are not attracted. It is also trite that while two interpretations are possible, the Court ordinarily would interpret the provisions in favour of a tax payer and against the Revenue". The lacuna pointed out by the Supreme Court has been overcome by the amendment to Section 9A(8) in 2004, by specifically borrowing the provisions of Customs Act, relating to determination of rate of duty. In the absence of any provisions relating to provisional assessment borrowed in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of assessment and collection of anti-dumping duty. We note that the Rules do not borrow any provisions relating to provisional assessment and do not provide for provisional assessment for the purposes of assessment and collection of anti dumping duty. Provisional assessment is contemplated in Rule 22 only in respect of exports made by new shippers, who have not originally exported the goods. In no other situation has provisional assessment been contemplated for the purposes of levy and collection of anti dumping duty. 7. In the light of the above discussion, we hold that the provisional assessments made in these cases are non est in the eye of law. 8. We now deal with the appellants' submission that a levy introduced retrospectively cannot be demanded/recovered under the provisions of Section 28 of the Customs Act. 8.1 It is well settled that where a Customs Notification grants exemption to imported goods subject to fulfilment of end-use condition which is subsequently found not to have been fulfilled, a demand under Section 28 cannot be sustained. This is for the reason that Section 28 is concerned with the state of affairs as prevailing on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10A have been set out by the Supreme Court in 1978 (2) E.L.T. J399 in the case of N.B. Sanjana, Assistant Collector v. The Elphinstone Spinning and Weaving Mills Co. Ltd., in paras 16 and 17. The assessee, Chhotabhai Jethabhai Patel, was engaged in the manufacture of bidis. With the introduction of excise duty on tobacco w.e.f. 28-2-51 by Finance Bill No. 13 of 1951, the assessee had paid excise duty on the tobacco cleared from its warehouse w.e.f. 1-3-51 to 28-4-51, in view of the provisions of Provisional Collection of Taxes Act, 1931. The Finance Act, 1951 enacted on 28-4-51, increased the excise duty payable on tobacco, with retrospective effect from 1-3-51. Consequent to the retrospective levy, demand notices were issued to the said assessee, demanding differential duty from him. The assessee challenged the demand on diverse grounds, including the power of the Central Government to impose levy with retrospective effect, and the power and jurisdiction of the officers to demand duty under Rule 10 of the erstwhile Central Excise Rules, 1944. 10. The High Court held as under : "But the question remains whether, even if the Act be valid and the case is within the Act, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that Rule 10 under which the demand was raised, cannot apply to such retrospective levy. The deficiency pointed out by the High Court was corrected by legislature by inserting Rule 10A. In view of the above, Section 28 will not apply to recover the duty levied retrospectively. 11. The next contention dealt with by us is that in view of Rule 21, no anti-dumping duty can be imposed on the imports made during the interregnum period. 11.1 Rule 21 of the Anti-dumping Rules, 1995 reads as under:- "21. Refund of duty.- (I) If the anti-dumping duty imposed by (the Central Government on the basis of the final findings of the investigation conducted by the designated authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. (2) If, the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. (3) If the provisional duty imposed by the Central Government is withdrawn in accordance with the provisions of sub-rule (4) of Rule 18, the provisional duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d will be reckoned correctly from the date of levy of provisional duty. However, in such a case, one cannot ignore Rule 21(1) und interpret the notification to hold that final anti-dumping duty shall be levied for the intervening period during which no provisional duty had been levied. 12. The submission of the learned DR is that this issue has already been decided against the appellants by the following decisions of anti-dumping Bench of the Tribunal : (a) 2006 (193) E.L.T. 17 - Nitco Tiles Ltd. v. Designated Authority (b) 2005 (192) E.L.T. 1137 - Apollo Tyres Ltd. v. UOI According to our understanding, the above decisions are on the applicability and validity of the findings of the Designated Authority and the customs notifications issued by the Central Government levying anti dumping duty. In other words, the challenge in these matters, was to the powers of the Central Government in issuing final notification with retrospective effect. The said decisions did not deal with or examine the question whether anti dumping duty is payable if the levy is retrospective. In other words, the applicability of Rule 21 to the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the expressions "levied and collected" and that clearly shows that the expression "levy" has not been used in the Act or the Rules as meaning actual collection. Dr. Syed Mohammad is, no doubt, well founded in his contention that if the appellants have power to issue notice either under Rule 10-IA or Rule 9(2) the fact that the notice refers specifically to a particular rule, which may not be applicable, will not make the notice invalid on that ground as has been held by this Court in J.K. Steel Ltd. v. Union of India [1969 2 SCR 418 = AIR 1970 SC 1173]. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under different power does not vitiate the exercise of the power in question. This is a well settled proposition of law. In this connection reference may usefully be made to the decisions of this court in B. Balakotaiah v. Union of India [1958 SCR 1052 = AIR 1958 SC 232] and Afzal Ullah v. State of UP, [1964 4 SCR 991 =AIR 1964 3C 264]. In para 18, the Supreme Court held as under : "18.......What is the meaning of the word "paid" in Rule 10 ? It is contended on behalf of the appellants that it means "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was filed on 1-5-02 and import took place on 1-5-02, the customs department charged anti dumping duty; in terms of Notification No. 50/02-Cus. and the same was paid by the appellants. By the present proceedings, the department seeks to levy and collect anti dumping duty in terms of Notification No. 73/03-Cus. dated 1-5-03. No anti dumping duty at all is payable and whatever anti dumping duty has been paid by the appellants is available as refund, if the date of import is 1-5-02. If the date of import is taken as after 2-5-02, then the appellants have paid anti dumping duty in terms of Notification No. 50/02-Cus. The final anti dumping duty levied by Notification No. 73/03-Cus with retrospective effect from 2-5-02 exceeds the provisional anti dumping duty levied and collected and therefore, in terms of Rule 21(1), no further duty can be collected/demanded from the appellants. 15. The additional submission in the case of Harsh International is now taken up : One shipment of tiles was imported vide bill of entry No. 1536 dated 22-10-02. On this day, Notification No. 50/02-Cus. levying provisional anti dumping duty was in force and accordingly, the appellants ware liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia produced by M/s. Naihai and exported by M/s. Prestige and suspended levy of anti dumping on such imports pending completion of investigation. In the Notification dated 23-5-03, Designated Authority in the Ministry of Commerce indicated that period of investigation would be 1st July 2002 to June, 2003. In other words, Designated authority would examine each export made by Nanhai during the above period to verify whether Nanhai's exports were at dumped price. The details of exports made available to the Designated Authority for verification tallies with the details of imports made by the appellants from Nanhai/Prestige as given in the present show cause notice and in the impugned order. In other words, the very imports which are subject matter of the present show cause notice/impugned order were also the very exports by Nanhai investigated by the Designated Authority under the New Shipper Review as to whether these exports by Nanhai were at dumped prices or not. The Designated Authority completed the investigation/review by examination of the records of M/s. Nanhai and M/s. Prestige, for each of the exports made by them (which are the very consignments on which anti dumping duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by M/s. Nanhai Shagyuan Oulin Construction Co. Ltd., China PR (now known as Foshan Oulian Construction Ceramic Ltd.) and exported from M/s Prestige General Trading, Dubai, UAE is above its normal value during the period of investigation. (ii) The Authority, therefore, recommends that no anti dumping duty be imposed on imports of Vitrified/porcelain Tiles falling under Chapter 69 of the Custom Tariff Act, 1975 produced by M/s. Nanhai Shagyuan Oulin Construction Co. Ltd., China PR (now known as M/s Foshan Oulian Construction Ceramic Ltd.) and exported from M/s. Prestige General Trading, Dubai, UAE." 16.1 Ministry of Finance, Department of Revenue issued consequential Notification No. 80/04-Cus. dated 28-7-04, amending Notification No. 73/03-Cus, stating that no anti-dumping duty is imposable on the tiles exported by M/s Nanhai/M/s Prestige and imported into India. This amending notification was given retrospective effect from 1-7-03. The relevant portion from Notification No. 80/04-Cus. is reproduced below : "And whereas the designated authority vide its final findings, No. 15/2/2003-DGAD, dated the 30th June, 2004, published in the Gazette of India, Extraordinary, Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the specific time period 1st July 02 to 31st July 03. Since exports from M/s Nanhai/ M/s Prestige are above the normal price and there is no dumping of goods by them into India, no anti-dumping duty is 'imposable. Antidumping duty is a duty on goods found to be dumped into India. The anti-dumping provisions are exporter-specific and are applicable to goods exported from specific exporter and from specific countries. If there is no dumping by an exporter, then no anti-dumping duty can be levied on such exports/imports. Even if anti-dumping duty has already been paid for these imports the same shall be refunded to the appellants by virtue of Section 9AA(1) which provides that- "9AA. Refund of anti-dumping duty in certain cases. - (1) Where an importer proves to the satisfaction of the Central Government that he has paid any antidumping duty imposed under sub-section (1) of section 9A on any article, in excess of the actual margin of dumping in relation to such article, he shall be entitled to refund of such excess duty." Relevant portion of Section 9A(1) reads as under :- "SECTION 9A. - Anti-dumping duty on dumped articles. - (1) Where any article is exported from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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