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TMI Blog2011 (4) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... without choke , classifiable under SH 8539 31 10 of the First Schedule to the Customs Tariff Act, would attract Anti-Dumping Duty in terms of Notification No. 138/02-Cus and, therefore, the order passed by the learned Commissioner in the second round of adjudication is liable to be upheld - the quantum of penalty will stand reduced to ₹ 20,000 - Decided against the assessee - C/106/06 - Final Order No. A/206/2011-WZB/C/(CSTB) - Dated:- 27-4-2011 - Mr.P.G. Chacko, Mr. Sahab Singh, JJ. For Appellant: Mr. Rajiv Gupta, consultant For Respondent: Mr. A.K. Prasad, Jt CDR Per: P.G. Chacko 1. This appeal filed by the assessee is directed against an order passed by the Commissioner of Customs (Import), confirming demand of Anti-Dumping Duty of Rs 56,32,461/- against the appellant after holding that the commodity imported by them was classifiable under Tariff Item 8539 31 10 and was covered by the description Compact Fluorescent Lamp (CFL) in Customs Notification No. 138/2002-Cus dated 10.12.2002. In this appeal, there is also challenge to the confiscation of the goods ordered in terms of Section 111 (d) and (m) of the Customs Act, as also to fine of Rs One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m) which was disposed of as per final Order No. A-776/WZB/2004/C-II dated 1.9.2004 since reported in 2004 (174) ELT 83 (Tri-Mumbai). That was a remand order of this Bench, wherein the description Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act, 1975 under Notification No. 138/02-Cus came to be examined and interpreted to enable the adjudicating authority to reexamine the issue and it was ordered (a) that the assessee should be required to furnish details of the missing parts of CFL to enable the adjudicating authority to consider the coverage of the subject goods for purpose of the above Notification; (b) that the adjudicating authority should obtain necessary clarification from the designated authority (Anti-Dumping) as to whether the item under consideration would come within the ambit of the above Notification; and (c) that it would be open to the adjudicating authority to obtain the views of the affected domestic industry, if necessary, to reach a conclusion regarding coverage, or otherwise, of the goods under the Anti-Dumping Notification. In the result, the substantive issue was required to be readjudicated by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of CFL. It is submitted that the goods imported by the appellant were intended to be supplied to industrial consumers who were manufacturers of CFLs, emergency lamps etc. According to the learned consultant, the PL Tubes did not answer the description of goods in the aforesaid Customs Notification. It is submitted that the product covered by that Notification was CFL with one or more glass tubes and having all lighting elements and electronic components and also the cap integrated in the lamp foot. According to the learned consultant, CFL without choke/ballast was not covered by the Notification, even though this item was also mentioned by the Designated Authority as an item exigible to Anti-Dumping Duty when imported into India from the People s Republic of China. In this connection, it is argued that the Notification has got to be interpreted strictly. The Notification specified CFLs only and did not specify CFLs without choke . Nothing can be added to the text of the Notification, nor can any word/expression in the Notification be deleted or amended. According to the rule of strict interpretation, only complete CFLs, complete with all lighting/electronic/housing elements, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e picture figures on page 28 of the catalogue has also been produced by the learned consultant and we have inspected the same. (A picture of this sample is included in this order vide figure I on page 9). He has also shown us a sample of what is claimed to be an integrated CFL . (Its picture is also included vide figure II on page 9). The integrated CFL shown by the learned consultant consists of a set of three parallel U shaped glass tubes fixed to a circular plastic base, which is joined to a plastic cup, which, in turn, is fixed to a metallic cap with two metallic leads at its bottom. The plastic cup can be opened by unscrewing the circular plastic base of the glass tubes. On opening the plastic cup, we have seen a PCB with some electrical wires connected to the bottom of the glass tubes and some other wires connected to the top of the cap below. We are told that this PCB with its accessories would work as a choke/ballast. The metallic cap (the bottom part of the integrated CFL sample shown to us) has two metallic pins on opposite sides which are said to be used for holding the lamp within the holder of the GLS. After showing this sample [figure II] to us, the learned consultant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, that ruling is applicable to, and binding on, M/s Permalite Electricals (P) Ltd only and nobody else. Therefore, the advance ruling in the case of Permalite Electricals (P) Ltd (supra) is not applicable to this case. It is further submitted that the Hon ble High Court s decision in the case of Plaza Lamps Tubes Ltd vs Commissioner is also not applicable to the instant case inasmuch as it is yet to be established by the appellant that the item considered by the Hon ble High Court in that case and the one presently under consideration are one and the same. 9. It is further pointed out that the appellant, even in their written submissions filed before the adjudicating authority in de novo proceedings, admitted that the item imported by them was also referred to as Pin Type CFL in the catalogues of manufacturers. The learned Jt CDR has also heavily relied on the findings recorded by this Tribunal in para 6 of its remand order. He has laid emphasis on the following excerpt from para 6: In particular, in our view, an incomplete, unfinished, unassembled or disassembled CFL satisfying the strict criteria laid down in GIR 2 (a) will get classified as CFL under Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Republic of China, and imported into India. Therefore, the confiscation of the goods ordered by the adjudicating authority, the fine determined by it for payment in lieu of such confiscation and the penalty imposed by it are all liable to be sustained. 12. The learned Jt CDR also invites our attention to a crucial entry contained in the Bill of Entry filed by the appellant, which is RSP ITEM mentioned against the description of the goods. Going by this entry contained in the Bill of Entry, the learned Jt CDR submits that the appellant themselves considered the imported item to be a finished product readily usable by a retail consumer. This, according to the learned Jt CDR, would also reveal the oblique intent of the importer, who misdeclared the goods as electronic PL Tube instead of CFL without choke . 13. The learned Jt CDR has also referred to two test reports concerning the subject goods report of M/s Indo-Asian Fusegear Ltd, Noida and report of Electronics Regional Test Laboratory (West), Ministry of Communication and Information Technology, Mumbai. It is submitted that the first test report was obtained from the domestic industry at whose instance the anti-dumping i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is external. (b) Anti-dumping duties were not recommended on parts/components of CFL . The submission is that the item imported by the appellant was not a complete CFL without lighting and electronic parts which were required to make it an integrated CFL. Without such essential requirements, the imported item could not have been said to be ready to use . In this manner, the learned consultant has claimed support from the decision in Anchor Daewoo Industries Ltd vs Commissioner of Customs, Kandla (supra). Yet another order placed on record by the learned consultant is a stay order passed by this Bench, which, having no precedent value, is not taken up for consideration. 16. The learned consultant has also made certain submissions which fly in the face of the findings recorded in para 6 of the Tribunal s remand order. These submissions pertain to classification of the imported goods and the reliability of Interpretative Rule 2 (a) in the classification. As rightly pointed out by the learned Jt CDR, the remand order was not challenged by the assessee and hence the findings contained therein are binding on them. 17. After giving careful consideration to the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy lamp , which has an inbuilt choke and can hold a CFL without choke , is analogous to GLS. The casing of a table lamp , which has an inbuilt choke and can hold a CFL without choke , is just an extension of the GLS to which it is plugged.] The item under consideration is so usable and hence it squarely answers the description CFL without choke given in the text of Notification No. 138/02-Cus. As a matter of fact, the appellant themselves declared it as RSP item thereby acknowledging that it was usable as such by the retail consumer. The operative part of the Notification (shorn of portions not necessary for our purpose) reads as follows:- AND WHEREAS the Designated Authority, vide its final findings, published in the Gazette of India, Extraordinary, Part I, section 1, dated the 14th November, 2002 has come to the conclusion that- (a) CFL originating in or exported from People s Republic of China and Hong Kong have been exported to India below normal value, resulting in dumping; (b) the Indian industry has suffered material injury from exports of subject goods from People s Republic of China and Hong Kong; (c) the injury has been caused cumulatively by the dumped i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluded. Obviously, CFLs without choke were also covered by the DA s final findings and, for that matter, covered by Notification No.138/2002. 20. As rightly submitted by the learned Jt CDR, neither the ruling of the Authority for Advance Ruling nor the judgment of the Hon ble High Court would be of any aid to the appellant. The ruling of AAR, rendered in the case of another importer cannot be applicable to the goods imported by the appellant, a legal position which is clear from Section 28J of the Customs Act. As regards the judgment of the Hon ble High Court, we note that the items referred to in the text of the question of law framed by the Hon ble High Court were pie tubes of different lengths sealed to a plastic base (metal base in the case of Single Pie) with two leads from the assembly . The Hon ble High Court s judgment does not discuss the operational features of the goods, nor does it advert to the question whether the items are usable by retail consumers or could be used only after assemblage with other parts/components. Moreover, the Hon ble High Court answered the above question by relying on the ruling of the Authority for Advance Ruling without considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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