9911796707
TMI Blog2011 (6) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... importer after paying the customs duty leviable on the phenol. 2. The dispute in the present appeal relates to leviability of safeguard duty. The safeguard duty was imposed vide Notification No.73/2001-Cus. dated 28.06.01. In terms of the said notification safeguard duty was not applicable in respect of imports made from developing countries. Since Singapore is a developing country, the imports from the same were exempted from the provisions of Notification No.73/2001-Cus. However the said notification was subsequently amended vide Notification No.38/2002 dated 02.04.02 including the imports made from Singapore leviable to safeguard duty. 3. The appellants were issued a show cause notice dated 15.09.04 proposing to levy and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of imports of phenol from developing countries. The said notification was amended by Notification No.38/2002 dated 12.04.02. The exception contained in para 2 Clause B was substituted and it was specified that such developing countries would be other than Malaysia, South Africa and Singapore. He accordingly held that though the said amendment was at the recommendations and findings of the Director General (Safeguards), the same were effective from the date of publication of the notification in the financial Gazette. In as much as the amending notification was issued on 12.04.02, the effective date of the notification would be 12.04.02 and not anterior to that. He further observed that the date of determination and rate of duty for goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have submitted that the said duty having been imposed on the phenol imported from Singapore for the first time w.e.f. 12.04.02, the imports which were complete before the said date, would not attract safeguard duty. 6. We find that the Tribunal in the case of Commissioner of Customs, Chennai Vs. Suja Rubber Industries reported in 2002 (142) ELT 586 (Tri. Chennai), while dealing with an identical issue of leviability of anti dumping duty cleared ex-bond after 14.11.95, when anti dumping duty was imposed for the first time, has held that the charging Section 9A of the Customs Tariff Act , for the purposes of anti dumping duty, provides for imposition of anti dumping duty on dump articles upon the importation of such article into Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, we find that the ratio of law arrived at in the said decision can be applied to the imposition of safeguard duty. The said safeguard duty stands imposed in terms of Section 8(B) of the Customs Tariff Act read with Rule 18 of Customs Tariff Act Act (Identification and Assessment of Safeguard Duty) Rules 1997. The said duty is leviable on the phenol, when imported into India. As such the incidence of tax is the importation of phenol. The phenol in the present case stands admittedly imported into India, prior to 12.04.02, when the earlier notification was amended and imports of phenol from Singapore were made leviable to safe-guard duty. The Tribunal has held in the above decision that provisions of Section 15 of the Customs Act providing r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd duty, which is not leviable under Section 2 or 3 of the Customs Tariff Act but is a duty under a self contained provisions of Customs Tariff Act (Identification and Assessment of Safeguard Duty) Rules 1997. As such the ratio of the above decision is not applicable to the facts of the instant case. 9. In fact, we find that the Hon'ble Supreme Court has distinguished the said judgment in the case of Sneh Enterprises Vs. CCE New Delhi reported in 2006 (202) ELT 7 (S.C.) and has held that the anti dumping duty which was not leviable at the time of import of the goods, cannot be made leviable in respect of the said goods at the time of filing of bill of entry, in the absence of any expression or clear intendment of the notification to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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