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TMI Blog2013 (1) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... opposed to reference price based duty on notification 104/2004 - Ministry of Finance vide Notification No. 70/2010-Cus. imposed anti-dumping duty on goods falling under the CTH 3904 22 10 Held that:- Final Findings of the D.A. is vitiated not only for the reason that the anti-dumping duty which was imposed on PVC Paste Resin falling under Heading 3904 21 10 during the original investigation has been recommended to be imposed on PVC Paste Resin falling under 3904 22 10 after the sunset review, there has also been a breach of natural justice by not giving adequate time and opportunity to the appellants to put forth evidence to support their claims before the D.A Further, the Ministry of Finance, Department of Revenue has imposed fresh anti-dumping duty on Plasticized PVC Paste Resin falling under Heading 3904 22 10 on 25-6-2010 instead of continuing the levy which was earlier imposed on Non-plasticized PVC Paste Resin falling under Heading 3904 22 10. Hence the said notification is in contravention of the provisions of Section 9A(5) of the Customs Tariff Act, 1975 The amending Notification dated 16-1-2012 has included two more Tariff items namely 3904 21 10 and 3904 21 90 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 25-6-2010 as well the amending Notification No. 8/2012-Cus. (ADD), dated 16-1-2012 issued by the Ministry of Finance, Department of Revenue vide their Miscellaneous Application No. AD/M/326/2012. Since the learned counsel appearing for the designated authority submitted that he was only representing the D.A. in the Ministry of Commerce and not the Ministry of Finance, the matter was specifically adjourned and a notice was sent to the Secretary, Revenue in the Ministry of Finance. The learned Special Counsel for the Ministry of Finance, Department of Revenue appeared on 5-7-2012. 4. Shri P.K. Rai, the learned counsel for the appellants has filed a dates and events chart stating inter alia as follows :- Dates Events Phase 1 : Original Investigation 22-8-2003 (Original initiation) D.A. initiated an Anti-dumping Investigation concerning imports of PVC Paste Resin falling under CTH 3904 22 10 20-8-2004 (Original Final Findings) D.A. after investigation issued FF and in para 2 stated that correct classification of PUC is 3904 21 10 In para 75 of FF a reference price based duty was recommended with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now been imposed on PVC Paste Resin falling under Customs Tariff Heading 3904 22 10 which is not permissible. He states that Customs Tariff Heading 3904 21 10 covers non-plasticized PVC Resin whereas Customs Tariff Heading 3904 22 10 covers plasticized PVC Resin. According to the appellants the sunset review has resulted in imposition of anti-dumping duty for the first time on plasticized PVC Resin and it is not a continuation of the earlier anti-dumping duty which was imposed on non-plasticized PVC Resin. 6. He further states that at the time of hearing the stay petition it was submitted on behalf of the D.A. that there was a typographical error in the Final Findings of 2004 and that the correct classification of the product under consideration was 3904 22 10. The same stand was also taken on behalf of the D.A. before the Hon ble High Court of Delhi. However, subsequently on 16-1-2012, Ministry of Finance has issued a Notification No. 8/2012 amending the Notification No. 70/2010-Customs, dated 25-6-2010 and imposing anti-dumping duty on goods falling under CTH 3904 21 10, 3904 21 90 and 3904 22 10. He states that the CTH 3904 21 10 was earlier claimed to be a typographical mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in addition, they have challenged the amending Notification No. 8/2012 which adds further Tariff entries in the anti-dumping Notification No. 70/2010. The learned counsel for the appellants has argued that such amendments are contrary to the submissions made on behalf of the D.A. before the Hon ble CESTAT as well as the Hon ble Delhi High Court that there was a typographical mistake in the initial Notification of 2004, and it has also been issued in excess of powers and jurisdiction vested in the Central Government since it has gone beyond the recommendation of the D.A. and beyond the mandate of the law. 9. He also submits an extract of the Customs Tariff 2011-12 relevant for consideration of the present appeal and states that there has been no change in the Tariff in respect of the product falling under CTH 3904 since 2004-05. The extract of the Tariff is reproduced below :- Extract of Customs Tariff 2011-12* 3904 Polymers of Vinyl Chloride or of other halogenated olefins, in primary forms 3904 - Poly (vinyl chloride), not mixed with any other substances: 3904 10 10 -- Binders for pigments 3904 10 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entry but under various Tariff Entries. According to him, that would justify reference to multiple Tariff entries in the anti-dumping notification though the duty has been imposed on the PUC by description. He also apprehends that if all the Tariff entries, under which import is taking place, are not specified, there may be escapement of anti-dumping duty on the PUC on account of mis-classification of the product at the port of entry. 13. He argues that the customs classification in the Final Finding and the anti-dumping notification are merely indicative whereas the duty is with reference to description of the article. He states that there can be change in classification midstream while the anti-dumping notification is in force and there can be a situation where the PUC is imported under different Headings. Government cannot be powerless in such situations to impose anti-dumping duty on the PUC which is identified in the Final Finding. He emphasizes that in the instant case the scope of the product has not changed at all and the product description has remained the same throughout and therefore mere change in the Tariff entry cannot have any effect on the levy of anti-dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent Ministry of Finance, D.A. and domestic industry. We find that in the original investigation before the D.A, the product under consideration was identified as Poly Vinyl Chloride Paste Resin while stating it was also called Emulsion PVC Resin. The classification of the product was indicated as 3904 21 10 with a clear remark that the same was indicative. It was also noted that PVC Paste Resin and PVC Suspension Resin are two distinct and different products. In the Final Findings, after the original investigation, the D.A. had recommended definitive anti-dumping duty on PVC Paste Resin falling under CTH 3904 21 10. In the Customs Notification No. 104/04-Customs, dated 7-10-2004, anti-dumping duty was imposed on goods of the description under Column 3 of the Table therein falling under Tariff item specified in Column 2 of the said Table. While we find that the D.A. has mentioned in his findings that the customs classification is indicative, there was no such stipulation in the Customs Notification. The Customs Notification specified the goods subject to anti-dumping duty with reference to two criteria, first by description of the goods and secondly by the Tariff item under whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at once the anti-dumping duty is imposed either after original investigation or after sunset review, it has to run its full course of five years unless withdrawn by any mid-stream review and that during the period it is in force, changes in the customs classification should not affect the levy of anti-dumping duty on the identified product. At the same time, we find that the Central Government does not have to impose anti-dumping duty by accepting every recommendation of the D.A. The law permits it, and there is also a practice that in some instances the anti-dumping duty recommended by the D.A. is not imposed by the Central Government. In the present case, we find that the identified product namely PVC Paste Resin may fall under more than one classification for example, under 3904 21 10 and 3904 22 10. Even 3904 22 90 may cover plasticized PVC Resin, if it is of a grade other than emulsion grade. The D.A. has described the product as PVC Paste Resins. The word paste does not appear in the customs classification and as such, the description of the product identified by the D.A. is not co-terminus with any of the Tariff entries. We, therefore, have to conclude that the D.A. has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sunset review. Therefore, the inescapable conclusion is that the Central Government had no power to impose anti-dumping duty on PVC Paste Resins falling under a different classification 3904 22 10 in 2010 as has been done. Issue of an amending Notification in 2012 while the appeal against the 2010 Notification was pending before the Tribunal was also not based on any recommendation of the D.A. Clearly the 2010 Notification and the 2012 amendment issued without any valid basis in law cannot be sustained. 23. Shri Venugopal, learned Senior Advocate has tried to place reliance on the decisions of the Tribunal in the case of Oswal Woollen Mills (supra) and Thai Acrylic Fibre (supra). We find that those cases were quite different and it has been observed by the Tribunal in both the cases that the impugned goods were clearly covered under the Chapter/Tariff item specified in the customs notifications as also by the description specified in the said notifications. The United States case law in Smith Corona (supra) supports the view that the anti-dumping duty requires to be levied with reference to a product and once imposed, the same can run its full course despite subsequent changes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. Unilateral amendments based on one party s representation to an official of the Finance Ministry made behind the back of all other interested parties cannot be justified as legislative action, especially when such action is being authorized at the level of the Joint Secretary. Curiouser still is the inexplicable fact that after obtaining the Joint Secretary s approval for amendment on 25-7-2011, Notification No. 66/2011 has been issued without making the changes on 26-7-2011 and subsequently a corrigendum has been issued without, of course, the approval of the F.M., which is then cited as a precedence to amend the impugned Notification No. 70/2010 in the present case. These glaring discrepancies are in addition to specifying a wrong tariff entry 3904 21 90, and imposing anti-dumping duty on PVC paste resin falling under 3904 22 10, whereas the Government had power to only continue the original levy on PVC paste resin falling under 3904 21 10. 25. We also find that the appellants have alleged that the D.A. has not followed the principles of natural justice, has not accepted the submissions of the appellants and that he has not given them time to adduce evidence in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore inclusion of these fresh items is in contravention of Rule 18 of the AD Rules, 1995 which requires the Central Government to levy anti-dumping duty only on the articles covered by the Final Finding of the D.A., and it also specifies a time limit of three months from the date of the Final Findings. Both the conditions have been violated while issuing the amending Notification dated 16-1-2012. 27. Keeping in view our findings as above, we set aside the impugned Final Findings of the D.A. dated 26-4-2010 as well as the Customs Notification No. 70/2010 dated 25-6-2010 along with amending Notification No. 8/2012 dated 16-1-2012 and remand the matter to the D.A. for deciding the matter afresh giving a reasonable opportunity of hearing to all concerned. The appellants shall have liberty to raise all issues before the D.A. which they have taken before us. At the same time, considering the fact that there is a positive finding of dumping, injury and causal relationships in the sunset review proceedings, we order continuance of the anti-dumping duty at the rate as applicable on the date proceeding issue of Notification No. 70/2010, dated 25-6-2010 on PVC Paste Resin falling under CTH ..... X X X X Extracts X X X X X X X X Extracts X X X X
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