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TMI Blog2009 (2) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from the date of imposition of provisional anti-dumping duty i.e. with effect from 21-12-01. Consequently, the CFL lamps imported by M/s. Dyna Enterprise during the month of November 2002 were also sought to be assessed to anti-dumping duty and a demand letter was issued to them on 10-2-2003 for an amount of Rs. 60,52,232/-. This amount of demand was later enhanced to Rs. 29,38,75,442/- by issuing a corrigendum-dated 10-9-2003 to the demand letter dated 10-2-2003. 2.1 Appellants vide their reply dated 18-8-03 stated that the provisional anti-dumping duty imposed on import of CFL from the People's Republic of China & Hong Kong vide Notification No. 128/01 expired on 20-6-02 and no notification was in force at the time of import of CFL by them. The final antidumping duty on CFL imposed under Notification No. 138/02 dated 10-12-02 had come into force only after the clearance of the CFL imported by them and hence was not applicable to their case. They further stated that the anti-dumping duty has been imposed on goods falling under 8539.31 of CTH whereas the said goods are assessed under heading 8539.29 of CTH whereas the said goods are assessed under heading 8539.29 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 14-11-2002. Therefore, in the absence of such a finding, retrospective levy, in the instant case, is bad in law. 3.2 It was submitted that in terms of Rule 21(1) of the Anti Dumping Rules, if the final Anti Dumping Duty is higher than the provisional levy already imposed and collected, differential shall not be collected from the importer whereas in terms of Rule 21(2) if the Anti Dumping Duty fixed after conclusion of investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. In the instant case, the provisional duty Notification expired on 20-6-2002 and no Notification extending the provisional duty under proviso to Rule 13 was issued. Thus, even assuming though not admitting the Anti Dumping Duty was in vogue during the intervening period, the same was zero and since the final Anti Dumping Duty is higher than zero, the differential cannot be levied and collected in terms of provisions of Rule 21(1). 3.3 It was submitted that provisions of Section 28 cannot be invoked for demand and recovery of duty imposed with retrospective effect. The impugned demand notice has been issued under Section 28(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposal whereas order is confirmation of the said proposal. Thus, the provisions of Section 154 which authorize correction of an arithmetical or clerical mistake or accidental slip in order or decision cannot be invoked for revising the demand already made under a statutory notice issued under Section 28(1) of the Customs Act, 1962. 3.7 It was submitted that in terms of Section 28(2) of the Customs Act, 1962, the Proper Officer is empowered to confirm the amount of duty due only to the extent of amount specified in the notice and not in excess thereof. Hence the harmonious reading of the provisions of Section 28(2) of the Customs Act, 1962 and Section 154 of the Customs Act, 1962 clearly manifest that the revision of demand in the instant case is patently unlawful. 3.8 It was further submitted that the impugned goods are not covered by Notification No. 138/2002-Cus., dated 10-12-2002. All the 13 consignments impugned in the present proceedings were assessed to duty under Customs Tariff Heading 8539.10/8539.29 and were cleared without levy of Anti Dumping Duty. Neither in the Demand Notice, nor in the impugned Order-in-Original or Order-in-Appeal, authorities have change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (i) Sneh Enterprises v. CC, New Delhi - 2006 (202) E.L.T. 7 (S.C.) for the proposition Anti-Dumping Duty (ADD) is leviable on the importation of goods and not when it passes the customs barrier. (ii) CC, Cochin v. Akash Trading Co. - 2005 (189) E.L.T. 246 (Tri.-Bang.) and CC, Cochin v. Chetan Enterprises - 2007 (207) E.L.T. 403 (Tribunal) = 2007 (78) RLT 525 (CESTAT-Ban.) for the preposition that at the time of import the goods were classified, under a sub-heading on which ADD was not imposable. No ADD is imposable as classification is not changed. (iii) Varma Industries Ltd. v. CCE, Bangalore - 1999 (111) E.L.T. 758 (T) for the proposition that once the goods are cleared, the Show Cause Notice has to be issued within time. 4. Learned SDR would submit that the impugned order is correct and needs to be upheld. It is her submission that the ADD is imposable during the interregnum period. She would draw out attention to the Notification No. 138/2002-Cus. vide which definitive ADD was imposed. It is her submission that the said Notification clearly stipulates that definitive ADD is imposable from date as mentioned in Notification, in this case even during the interregnum per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b : - Import of CFL - Ex. S.S. B/JE Nos. (list enclosed) HD/HC No. Contents ************************ Whereas it appears that customs duty amounting to Rs. 60,52,232/- (Rupees Sixty Lakhs Fifty Thousand Two Hundred and Thirty Two Only) was short levied in respect of the above consignment for the reason stated below : Anti dumping duty had not been collected, which has resulted in the short levy. And whereas you are chargeable with aforesaid duty, you are required to show cause within 15 days from the date of receipt of this notice to the Dy./Asst. Commissioner of Customs, Appraising Import Department, Customs House, Cochin - 9 as to why the amount specified above should not be paid. Any representation oral or in written made by you should be addressed to the Dy./Asst. Commissioner of Customs as above mentioned and should be accompanied by supporting documentary evidence. You are also requested to state if you would like to be heard in person. If no representation is received within the aforesaid period or if you fail to turn up on the date when the case is posted for hearing, orders will be passed in accordance with provisions of Section 28(2) of the Customs Act, 1962 witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead. "7. We now proceed to consider the question of limitation by time bar under the said Rules with respect to each of these four show cause notices. In this connection, we find that the Facts of this case are different from the facts in the case cited by the learned DR namely ACME Batteries Pvt. Ltd. (supra). In that case the subsequent Show Cause Notice was issued on a clear direction in the Central Government's Revision Proceedings under law. In the present case, the two revised Show Cause Notices are issued by revenue suo motu and not as a consequence of any direction of any Judicial or Quasi-Judicial Order. Therefore the said case laws stands distinguished on facts. As against this, the decisions in the case of Radhika Vitamalt Pvt. Ltd. (supra), Anna Saheb Bapu Bhagate (supra) and Jenson and Nicholson (supra) had clearly laid down that the time limit under Rule 10 as it existed from time to time is to be computed from the date of later show cause notice, the first having been superseded by the later notice. In this connection on a perusal of the original two and its revised two Show Cause Notices in lieu thereof, we find that the subsequently revised Show Cause Notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Compact Fluorescent Lamps, falling 'under sub heading No. 8539.31 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from People's Republic of China and Hong Kong, and imported into India, the designated authority vide its preliminary findings, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 2nd November, 2001, has come to the conclusion that - (a) the imports of Compact Fluorescent Lamps into India from People's Republic of China and Hong Kong have increased quite significantly both in absolute terms and relative to consumption in India ; (b) the sale of domestic industry has declined significantly; (c) the domestic sale prices are suffering from both price suppression arid price depression due to dumped imports from China People's Republic of China and Hong Kong; (d) the production has remained more or less static during period of investigation; (e) closing stocks has gone up by around 145% during period of investigation over previous year; (f) the capacity utilization during the period of investigation was as low as 20% (after taking into account the increased capacity); (g) the domestic indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al point made by the Commissioner (Appeals) is that the anti-dumping duty is leviable only on goods classified under CTH 8539.31. However in the present case, the goods have been classified under CTH 8539.22. He has stated that this question has not been changed even in the order of the Assistant Commissioner which confirmed the demand of anti-dumping duty. The other legal point is that the show cause notice amount to Rs. 2,10,052/-. After the Order-in-Original has been confirmed, the corrigendum had been issued to increase the amount to Rs. 1,01,99,142/-. In other words, after the case has been decided, the Original authority becomes functus officio. He cannot hike the demand by a corrigendum. As clearly stated by the Commissioner (Appeals), the issue of the corrigendum to the demand letter and the Order-in-Original is clearly beyond the scope of show cause notice. We reproduce the Section 154 of the Customs Act below : "Section 154. Correction of clerical errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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