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TMI Blog2015 (5) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. Tianjin Dagu Chemicals Co. Ltd. It agrees that the goods so imported were liable to anti dumping duty but claims that the goods being originated in China and manufacturer was from China as well as export was made therefrom, such goods shall fall under SI.No.19 of Notification No.11/2008-Cus dated 23.1.2009 of the Ministry of Finance for levying definitive anti-dumping duty. 2. But Revenue was of belief that the goods imported shall be liable to anti-dumping duty under Sl.No.23 of the above said Notification since that entry covers export by any manufacturer and any exporter or a combination thereof. Such doubt arose in the mind of department for the reason that export was made from China by M/s. Tianjin Dagu Chemicals Co. Ltd. and the anti-dumping duty notification issued on 23.1.2008 was amended on 24,3.2008 bringing name of that manufacturer to appear in column No.8 of the original Notification dated 23.1.2008 prescribing the levy of anti-dumping duty as exporter of the subject goods. Revenue says that when name of the manufacturer was not appearing in column NO.8 of the notification dated 23.1.2008, the export shall fall under SI.No.23 of the said Notification being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of entry, export of subject goods was made from China by the producer itself and the goods were manufactured in China. Amending Notification No.38/Cus-2008 dated 24.3.2008 brought out name of the manufacturer M/s. Tianjin Dagu Chemicals Co.Ltd to column No.8 of the original Notification dated 23.1.2008 implying that if the producer also exports subject goods, that shall be liable to anti-dumping duty under serial No. 19. This is a curative measure prescribed by the notification to be construed as effective from 23.1.2008 so as to ensure no escapement of duty if producer also exports subject goods manufactured in China. Rationale behind the amendment was to overcome the shortcomings in the earlier notification whereby subject goods exported by producer- exporter escaping anti-dumping duty were brought to levy from the date the definitive anti-dumping duty was imposed. Amendment extended scope of levy bringing the export made by both producer and exporter to the ambit of levy. Therefore the amending notification is to be read in the manner that advances the object of extending scope of levy to gather Revenue without escapement of a manufacturer from levy under Sl. No.l9 of the Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at Sr. No.19 prescribed anti-dumping duty on the goods manufactured by Tianjin Dagu Chemical Co. Ltd. and exported by Tianjin Bohai Chemical Industries Import and Export Corporation whereas the entry at Sr. No. 23 covered any other combination of producer-exporter. The goods covered under Sr. No.19 attracted lower anti-dumping duty as compared to those under Sr. No.23. In these circumstances, the Appellants claimed that their product did not attract any anti-dumping duty, as they were not cover under either of these entries. Though they abandoned this stand later on. The Revenue on the other hand sought to levy duty prescribed under Sr. No.23 on the ground that the Appellants would be covered under 'Any other combination of producer-exporter'. 10. Subsequently, on 24.03.2008 Notification No.38/2008-Cus was issued to amend the entry at Sr. No.19 to include the name of Tianjin Dagu Chemical Co. Limited (the manufacturer) in the category exporters in addition to the existing exporter Tianjin Bohai Chemical Industries Import and Export Corporation. It is this amendment in the Notification that has prompted the Appellants to claim that the amendment had a retrospective effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No.23 till the amending Notification was issued on 24.03.2008. 11.2 Further, I would like to mention that the amending Notification is not a corrigendum to the initial Notification and there is nothing in it to show that amendment to entry at Sr. No.19 was to be given retrospective effect. Accordingly, I am of the view that the consignment of goods, which is subject matter of the present dispute, would be liable to anti-dumping duty in terms of entry at Sr. No. 23. 11.3 That a notification has been issued as a curative measure has to emerge from the amending Notification itself. There is no scope for any intendments merely for the reason that it amended an existing entry. Such an interpretation is bound to upset the assessments made in accordance with the then existing provision of law or Notification. It is pertinent to mention here that the Appellants have been contending that not being covered by the anti-dumping duty Notification in question as (Sr. No.19 did not mention the name of Tianjin Dagu Chemical Co. and Sr. No.23 did not cover the exports made by manufacturer-exporter) they were not liable to pay any antidumping duty. Later on they abandoned this argument and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be viewed as given retrospective operation to the liability. In cases of Govinddas and Ors. V. The Income Tax Officer and Anr.-AIR 1977 Supreme Court 552, the Apex Court was considering provision of Section 171 of Income-tax Act, 1961, in which the Legislature under sub-section (6) provided that even when no claim of total or partial partition is made at the time of making assessment under section 143 or 144 of the Act, it is found after the completion of assessment that the family has already effected as partition, total or partial, all the members shall be jointly and severally liable for the tax as payable by the joint family and the tax liable shall be apportioned among the members according to the portion of the joint family property allotted to each of them. The Apex Court was of the opinion that sub-section (6) of section 171 thus ,for the first time, imposed in the case of this kind joint and several liability on the members for the tax assessed on Hindu Undivided family and thus was personal liability as distinguished from the liability limited to the joint family property received on partition. The Apex Court thereupon held and observed that: We cannot, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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