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TMI Blog2015 (6) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... 01/02/1962 onwards till the enactment of Finance Act, 2001, notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or authority. Anti-dumping duty Notification expired. Expiry is also one form of supercession or recission or repeal, the effect being the same as the latter. Therefore, the contention of the appellants that adjudication proceedings cannot continue after the expiry of anti-dumping duty Notification for recovery of any escaped duty liability or imposition if any penalty, is without any merit and we reject this contention totally. With the retrospective application of sub-section (8) of Section 9A of the Customs Tariff Act, the provisions of Section 159A of the Customs Act would apply in respect of the proceedings relating to anti-dumping duty as well and, therefore, the argument that after expiry of the anti-dumping notification proceedings cannot be initiated has no legal basis and we reject this contention. The clarification has been issued in 2006 in respect of a levy imposed in 2002. Therefore, the said clarification is not contemporaneous as to have any persuasive value. It is a settled position that the law has to be inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ud and clear. From the documents seized and the statements recorded, it is clear that the appellants intended to import complete CFL and they deliberately played a subterfuge to split the consignments and importing them under different consignments or through different ports. Such action on the part of the appellants is a fraud perpetrated on the exchequer. An act of fraud on Revenue is always viewed seriously. Argument that demand is hit by limitation is not tenable. - The ordinary meaning of circumvention is ‘to go around, to by-pass or to avoid’. It is different from tax evasion. There is a world of difference between tax avoidance and tax evasion. Tax avoidance implies complying with the provisions of law but defeating the intention of law by taking advantage of the loopholes in the law. Tax evasion means avoidance of tax through illegal means or fraud and is undertaken by employing unfair means. We have already noted that the transactions involved fraud or unfair/illegal means by manipulation of documents and by artificial splitting of consignments with a clear intent to evade anti-dumping duty. Therefore circumvention and evasion cannot be equated. Fine can be imposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Samay Electronics Pvt. Ltd. (Samay in short) had imported 106 consignments of CFL from China in SKD form without payment of anti dumping duty leviable on CFL vide Customs Notification No. 138/2002-Cus dated 20/12/2002. (a) As part of the investigation, officers of the DRI, Ahmedabad visited the office and factory premises of M/s. Samay on 28/11/2006. During the visit, it was found that M/s. Samay was importing glass tubes with base from China at Kandla port and holders with wire and populated PCBs for CFL at Mumbai. The CFLs were being assembled at their factory by soldering the above goods. All the components put together constituted CFL in SKD form and as per Rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975, the same merited classification as CFL under CTH 8539 3110 and not as components of CFL under CTH 8539 9010 as claimed by the appellant. During the investigation 158257 pieces of CFL of different watts in SKD condition was seized by the officers under a panchanama dated 28/11/2006 as it appeared that the same were liable confiscation. (b) Statements of Shri Vasantbhai Chunibhai Patel, Chief Engineer of M/s. Samay was recorded on 08/12/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gdong Province, China by mis-declaring these items under import as components of CFL. They had thus evaded anti dumping duty amounting to ₹ 79,40,69,516/-. (d) On completion of the investigation, a show cause notice dated 23/05/2007 was issued seeking to classify the goods under CTH 85393110 as CFL as against the classification done by the appellant at the time of importation under CTH 8539 9010 as parts of CFL, by applying Rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975 and demanding anti-dumping duty along with interest thereon and also proposing confiscation of the goods under Section 111(m). The notice also proposed imposition of equivalent amount of penalty under Section 114A of the Customs Act, 1962 on the appellant- importing firm and also on the Director Shri Rameshbhai Patel. (e) The said notice was adjudicated vide order dated 13/06/2008. The goods seized during the investigation consisting of 158257 pieces of CFL in SKD condition was confiscated with an option to redeem the same on payment of fine of ₹ 25 lakhs. Further the entire quantity of 7556708 pieces of CFL in SKD condition imported were also confiscated with an opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g duty. The adjudicating authority also imposed penalty of equivalent amount on the importer, M/s. Wipro Limited under Section 114A. The goods covered by all the Bills of Entry were confiscated with an option to redeem the same on payment of fine of ₹ 41 lakhs. A penalty of ₹ 2 lakhs was imposed on Shri Dilip Basole, Vice President (Commercial) of the appellant-firm under Section 112(a) of the Customs Act, 1962. (3) M/s. Sunora Electronics: During September 2005 to December 2006, M/s. Sunora Electronics imported CFL in SKD condition partly by itself in and partly through M/s. Shell Pearl Ceramics Ltd., Ahmedabad. (a) It was found that vide six Bills of Entry, namely, 307935 dated 26/09/2005; 311179 dated 24/01/2006; 314762 dated 14/07/2006; 315896 dated 12/09/2006; 788914 dated 29/05/2006 and 981733 dated 01/12/2006, M/s. Sunora Electronics Industries at Morbi had imported directly from M/s. Lightex, Hong Kong, PCBs with socket for bulbs. Under another six bills of entry, M/s. Shell Pearl Ceramics Ltd., Ahmedabad, imported matching quantities of tubes for bulbs from M/s. Intexport, Hong Kong vide bills of entry Nos. 971371 dated 19/09/2005; 676299 dated 20/01/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 9,16,50,373/- from M/s. Sunora Electronic along with interest thereon. The notice also proposed to impose penalty on both M/s. Sunora Electronic and M/s. Shell Pearl Ceramics Ltd. and also on Shri Jigneshbhai Patel, Partner of M/s. Sunora Electronic and Shri Prafulla Gattani, Director of M/s. Shell Pearl Ceramic Ltd. (g) In the adjudication order, the proposals in the show cause notices were confirmed and anti-dumping duty of ₹ 9,16,50,373/- together with interest was confirmed on M/s. Sunora Electronics and equivalent amount of penalty was also imposed under Section 114A of the Customs Act. A penalty of ₹ 2= crore was imposed on Shri Jigneshbhai Patel, Partner of M/s. Sunora Electronics and a penalty of ₹ 1= crore was imposed on M/s. Shell Pearl Ceramics Ltd. under Section 112(a) of the Customs Act apart from a penalty of ₹ 2= crores on Shri Prafulla Gattani, Director of M/s. Shell Pearl Ceramics Ltd. (4) M/s. Amar Energy Systems: Investigation conducted revealed that during the period November 2006 to September 2007, the appellant, M/s. Amar Energy Systems, had imported several consignments of CFL in SKD/CKD condition from Hong Kong and Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Section 4A of the Central Excise Act, 1944. The appellant, for manufacture of CFL, had made an investment of ₹ 35 lakhs on capital goods and had employed about 300 workers. The Director General of Anti-Dumping issued a Notification dated 16/08/2001 initiating anti-dumping investigations concerning imports of CFL originating from China and the product covered was Compact Fluorescent Lamp (CFL) with one or more glass tubes and which have all lighting elements, all electronic components and cap integrated in the lamp foot. It also covered Compact Fluorescent Lamps without choke or ballast. 3.2. On 02/11/2001 the preliminary findings were notified vide Notification No. 34/1/2001-DGAD dated 02/11/2001 and the product covered was as described above. Vide Notification No. 128/2001-Cus dated 21/12/2001, anti-dumping duty was imposed on Compact Fluorescent Lamps originating from China. The DGAD issued final findings vide Notification dated 14/11/2002 and the product covered by the investigation was the same as that covered by the preliminary investigation and vide Notification No. 138/2002-Cus dated 10/12/2002, the Central Government imposed definitive anti-dumping duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contrary, nothing can survive except as to matters and transactions past and closed. Reliance is placed on Maxwells The Interpretation of Statutes - Twelfth Editionwherein it is stated that: The common law rule was that if an Act expired or was repealed it was regarded, in the absence of the provision to the contrary, as having never existed, except to matters and transactions past and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution began while the Act was still in force. 3.6. Reliance is also placed on the Kolhapur Canesugar Works Ltd. vs. Union of India 2000 (119) ELT 257 (SC) case, wherein the apex Court considered the issue of omission of a statute in terms of Section 6 of the General Clauses Act, 1857 and it was held that: In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue and the goods imported have been treated as parts. Even for the levy of CVD, the goods have been treated as parts. The present notice seeks to alter the classification only in respect of anti-dumping duty alone, wherein the classification is sought to be changed as complete CFL and this is fatal to the Revenues case. Even if it is assumed that the imported goods are CFL in SKD/CKD condition, the law was amended only in 2008 wherein CFL in CKD/SKD condition were also made liable to anti-dumping duty. Therefore, for the period prior to March 2008, there cannot be any anti-dumping duty on CFL in CKD/SKD condition. Section 9A(1A) of the Customs Tariff Act was brought under the statute w.e.f. 08/04/2011 which provided for levy of anti-dumping duty in case of circumvention either by altering the description or the name or composition of the article with an intent to render ineffective the levy of anti dumping duty. The said provisions were made effective from 19/01/2012. Therefore, prior to 08/4/2011 / 19/01/2012, there was no provision, if the importers resorted to circumvention by bringing articles in unassembled or disassembled conditions. Even as per the amended provisions, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of CFL like electric bulbs, populated PCBs, plastic parts, metal caps, etc. will not mean that there is import of CFL in CKD/SKD condition. In Nav Durga Associates vs. Union of India [2013 (287) ELT 19 (Del.)], the honble Delhi High Court held that Rule 2(a) of GIR changes the classification, but it does not alter the nature and description of the imported goods. In the said case, the assessee imported various parts of dry battery cells and the department sought to levy anti dumping duty on such parts by applying Rule 2(a) holding that there has been import of dry battery cells in CKD/SKD condition. The honble High Court held that since Notification did not cover parts of dry battery cells, the demand for anti-dumping duty would not sustain. 3.12. The learned counsel further argues that Rule 2(a) of GIR is inapplicable for a number of reasons. The said rule would apply only when the goods are presented in one lot at the time of import. If there are imports separately at different points of time at different ports, they cannot be treated as presented together so as to invoke Rule 2(a) of GIR. Reliance is placed on the decision in Tata Motors vs. CCE ]2008 (222) ELT 289] aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant received the show cause notice only on 24/05/2007 and therefore, the entire period of demand is clearly beyond the normal period of six months. It is also submitted that as per the information obtained through RTI, , Commissioner of Customs, Mumbai, was aware that parts of CFL were imported through Mumbai and Kandla port and the manufacturing process carried out in appellants premises at Morbi and he had sought information in this regard from the Commissioner of Central Excise Customs, Rajkot. Therefore, the department was also under the belief that anti-dumping duty is not leviable on parts of CFL. 3.15. The learned counsel for M/s. Wipro Limited, while reiterating the arguments made in the case of M/s. Samay Electronics, submits that anti-circumvention provisions which came into force on 08/04/2011 are only prospective and cannot be applied to past imports. Further, CFL in SKD condition was covered by fresh investigation conducted in 2008 and therefore, it is clear that prior to this investigation, the levy of anti-dumping duty applied only on complete CFL. It is further submitted that tax planning cannot be termed as illegal or illegitimate or impermissible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants had admitted that the imported components, namely, glass tubes with base, holders with wire and PCBs (put together by soldering wires), constituted a complete CFL in SKD condition. In the light of these admitted facts, the contention that the goods have to be assessed as presented i.e., parts and components of CFL cannot be accepted. It is open to the department to club the components or parts of any complete article imported under two or more bills of entry by a person or by more than one person, having common economical interest at or about the same time, so as to make such an article in CKD or SKD condition by virtue of Rule 2(a) of General Interpretative Rules. Various courts, including the apex Court have held that the goods imported in different consignments on different dates and even through different ports can be clubbed together, if it is found that it has been so done only as a subterfuge to evade payment of duty. He relies on the following decisions:- (a) Sharp Business Machines Pvt. Ltd. 1990 (49) ELT 640 (SC): In this case, the importers imported three consignments of components and consumables in SKD/CKD condition for plain paper copiers under three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly, and so on. In effect, they were importing the entire car in CKD condition for which they filed 11 bills of entry with Bombay Customs and another 14 bills of entry with Madras Customs and claimed the goods to be components and also sought to avail benefit of Notification No. 73/93. The adjudicating authority held that, between the imports in Bombay and Madras, entire cars had been imported in CKD condition and thus the components were classified as cars. At the appellate stage, the Tribunal allowed the appeal of M/s. Maeostro Motors Ltd. The matter reach the honble Supreme Court and the honble apex Court held that such components are nothing but cars in CKD condition by applying the interpretative Rule 2(a) of the General Rules of Interpretation of the Customs Tariff. (d) In Videomax Electronics case [2011 (264) ELT 466], two proprietary firms, namely, M/s. Electronic Instrumentation owned by Shri Vinod Kumar Agarwal and M/s. Videomax Electronics owned by the wife of Shri Vinod Kumar Agarwal, imported parts and components of rechargeable lights and radio cassette recorders during the period from April, 1997 to February, 1998. The goods were assessed and allowed to be cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nhava Sheva, vide final order No. A/223-224/14/CSTB/C-I dated 16/12/2013 this Tribunal examined levy of anti-dumping duty on plastic injection moulding machine imported in CKD/SKD condition and held that, if Rule 2(a) of the GIR is invoked, the goods under importation would satisfy the description of a complete machinery leviable to anti-dumping duty and accordingly, upheld the levy of anti-dumping duty. (h) As regards the argument that since anti-dumping duty Notification expired on 20/12/2006 without any saving clause, and thereafter, proceedings cannot be initiated, sub-section (8) of Section 9A was amended vide Finance Act, 2009 which provided for application of the provisions of Customs Act, 1962 and the Rules and Regulations made thereunder in respect of anti-dumping duty, as far as may be, as they apply in relation to the duties leviable under that Act and vide Section 102 of the Finance Act, 2009 the said section was been given retrospective effect from 01/11/1995 and all actions taken during the period 01/01/1995 to 19/08/2009 were validated. In the present case, during the currency of Notification 138/2002-Cus dated 20/12/2002, the appellant incurred the liability to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks Ltd. vs. Union of India (supra) in support of this contention to say that the proceedings will terminate since the statute expires. Reliance has also been placed on the decision of the honble apex Court in the case of S. Krishnan vs. State of Madras (supra) and a few other decisions. (i) A similar issue came up for consideration by a Larger Bench of this Tribunal in the case of Surana Metals Steels (I) Ltd. vs. Commissioner of Central Excise, Chennai 2007 (216) ELT 24 (Tri.-LB). The question for consideration before the Tribunal was, with the omission of Section 3A of the Central Excise Act, w.e.f. 11/05/2001 and also omission of Rules 96ZO and 96ZP of Central Excise Rules, 1944 w.e.f. 01/03/2001, whether proceedings for recovery of obligations and liabilities which were incurred when the provisions were still in force could be continued or not? The Larger Bench considered the decision of the honble apex Court in the case of Kolhapur Canesugar Works Ltd. (supra) and noted that Section 38A was added in the Central Excise Act vide Finance Act, 2001 and vide Section 131 of the said Finance Act, it was specifically provided that where any rule under the Act is amended or repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tata Iron Steel (supra) decisions relied upon by the appellants herein. It was held by the honble High Court that, in view of the provisions of Section 38A of Central Excise Act, 1944, even after omission of Section 3A, the liability of the assessee thereunder would not be wiped out and the question was answered in favour of the Revenue and against the Petitioner. In a recent decision in the case of Mittal Alloys vs. Commissioner of Central Excise, Chandigarh 2014 (304) ELT 399 (P H), the honble High Court of Punjab Haryana considered an identical matter. The question before the honble High Court was whether the omission or otherwise of Rule 96ZO(3) of the Central Excise Rules would affect any obligation or liability already accrued or incurred? The honble High Court considered the various decisions of the apex Court and the High Courts including the Kolhapur Canesugar Works Ltd. case (supra) and came to the conclusion that omission or otherwise of Rule 96ZO(3) of the Central Excise Rules would not affect any obligation or liability that has already accrued or incurred and therefore, the submission that omission of Rule 96ZO(3) would render the adjudication proceedings a nullit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of a levy imposed in 2002. Therefore, the said clarification is not contemporaneous as to have any persuasive value. Secondly, the levy is governed by the Customs Notification 128/2002-Cus. In the said notification as also in the notification issued by the DGAD recommending the levy, the expression used is compact fluorescent lamp falling under Chapter 85 of the First Schedule to the Customs Tariff Act. It is these words used in the notification, which are unambiguous and clear, that would prevail for the purposes of the levy rather than any clarification issued in this regard, that too, after a considerable lapse of time. It is a settled position that the law has to be interpreted strictly in accordance with the language employed. Nothing has to be read in or nothing has to be excluded while interpreting the plain terms of the statute. As stated by the Privy Council [Crawford vs. Spooner, (1846) 6 Moore PC 1]- we cannot aid the Legislatures defective phrasing of an Act, we cannot add or mend and, by construction, make up deficiencies which are left there. Therefore, no reliance can be placed on the said circular for interpretation of the anti-dumping duty notification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differential duty liability might have arisen under the provisions of the Customs Act, 1962 or under section 3 of the Customs Tariff Act. That does not mean that if any liability arises on account of levy of anti-dumping duty under Section 9A, separate and independent proceedings cannot be instituted by the department against the importer. 5.5. The next question is whether provisions of Rule 2(a) of the General Interpretative Rules could be invoked for levy of anti-dumping duty. Notification 128/2002-Cus dated 10/12/2002 imposed anti-dumping duty on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act originating in or exported from the country(s) specified in column (2) of the table annexed thereto, when exported by exporter(s) mentioned against the corresponding entry in column (3) of the said Table, and imported into India, an anti-dumping duty at the rate which is equivalent to the difference between the amount mentioned in corresponding entries in column (4) or column (5) of the said Table, and the landed value of the imports per unit in US$. As per the table, if the country of export is Peoples Republic of China or Hong Kong, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports made by M/s. Samay Electronics, both Shri Vasantbhai Chunibhai Patel, Chief Engineer and Shri Rameshbhai Patel, Director have admitted that they assembled CFL by simply soldering the glass tubes with base imported at Kandla and holders with wire and populated PCB imported at Mumbai and they did not use any other material other than the imported components. It is also an admitted position that imports were managed by the appellant-firm by negotiating with various manufacturers in China. It is also revealed that the entire CFL in SKD condition have been supplied under the same number and date of invoice. However, a suffix to the said invoices were added as K M in respect of consignments imported at Kandla port representing K and consignments imported at Mumbai port representing M. Suppliers of the goods were the same in all the cases. In the present case, it is seen that in one of the imports, the same vessel carried both these consignments and a part of the consignment was unloaded at Mumbai and the balance at Kandla. In other words, the order was placed by M/s. Samay Electronics for complete CFL and they were also transported by the same vessel. Only the consignments were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 9A forms part of the Customs Tariff Act and therefore, the Rules of Interpretation, which is an integral part of the Schedule to the Customs Tariff Act would apply in respect of the levy under Section 9A as well. Further as per Rule 2(g) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the expression article has the meaning assigned to it in the Customs Tariff Act, 1975. Rule 2(a) of the General Rules of Interpretation which is an integral part of the said Act defines the meaning of the term article. Thus as per the statutory provisions relating to anti-dumping duty, the said levy would apply not only to complete articles but also to incomplete articles or articles, unassembled or disassembled, if as presented the incomplete article has the essential character of the complete article. In other words, the scheme of levy of anti-dumping duty under the Customs Tariff Act, 1975, does not envisage or prescribe a separate set of principle of classification for the purposes of the said levy. The General Rules of Interpretation of the Tariff would apply equally for the levy of basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignment or in different consignments or at different ports, constitute complete CFL. Therefore, the facts of the Philips India case are distinct and can be distinguished on facts alone. Similarly, in Permalite Electricals (P) Ltd. case, the decision was by an Advance Ruling Authority and it is a well-settled position that the said decision will apply only in respect of the parties involved, i.e., between Permalite Electricals (P) Ltd. and the Commissioner of Customs concerned and the ratio of the said decision has no universal application. Similarly, in the case of Plaza Lamps and Tubes Ltd. (supra), the said decision was based on the earlier decision in Philips India case. As already held, Philips India case is distinguishable on facts and therefore, it follows that the ratio of Plaza Lamps and Tubes Ltd. also would not apply. 5.12. As regards the reliance placed on the decision of the honble High Court of Delhi in the case of Nav Durga Associates (supra), the said decision pertained to import of parts of dry battery cells, namely, empty zinc tube, round paper parts, asphalt sealing material, carbon rod, round plastic ring, metal caps, printed cover, plastic packing tube, pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proper. 14. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. 5.15. In our considered view, the facts obtaining in the present case are substantially different from those obtaining in the various cases relied upon by the appellant. Further these decisions did not lay down any ratio to the effect that that separate rules of classification would apply for levy of different types of cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, attract anti-dumping duty. If GIR 2(a) is held to be not applicable for anti-dumping duty purpose, then it would be very easy to circumvent the duty by merely removing a small insignificant part of a CFL or importing the same separately and claiming that complete CFL has not been imported. We are of the view that such interpretation that would allow and encourage circumvention and defeat a WTO compatible contingency trade protection measure is not warranted. Moreover, the GIR is an integral part of the same Customs Tariff Act, 1985 under which (Section 9A) anti-dumping duty is also levied and therefore, there is no reason to doubt its applicability specially when the product coverage under the notification is with specific reference to Chapter 85 of the Customs Tariff. 7. We are, therefore, of the view that under the impugned notification, anti-dumping duty is leviable on goods which are complete CFL as well as goods which will merit classification as CFL under Chapter 85 in terms of GIR 2(a). As regards parts of CFL, the same would not attract anti-dumping duty as the same have not been covered specifically under the impugned notification. 5.18. In these circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty chargeable under this section ( that is, 9A) as they apply in relation to duties leviable under that Act (that is, Customs Act). Further vide Section 102 of the said Finance Act, validation of the actions taken under Section 9A of the Customs Tariff Act has also been provided as if the provision of sub-section ( 8) existed at all times and recovery shall be made of all such amounts of duty or interest or penalty, fine or other charges which have not been collected as if the amendment made by the said section had been in force at all times. This validation of the action is for the period commencing on/and from 01/01/1995 and ending with day on which Finance (No.2) Bill, 2009 got the Presidential assent. Therefore, there is no merit in the contention that Section 28 of the Customs Act cannot be invoked for recovery of anti-dumping duty which has escaped the levy. 5.21. There is also a contention raised by the appellants that extended period of time could not have been invoked in the present case. We do not agree with the contention for the following reasons. From the documents seized and the statements recorded, it is clear that the appellants intended to import complete CFL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate whose financial needs, if backed by the law, have to be respected and met. We must recognise that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that It stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taking statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. A hint of this approach is to be found in the judgment of Desai, J. in Wood Polymer Ltd. v. Bengal Hotels Limited where the learned judge refused to accord sanction to the amalgamation of companies as it would lead to avoidance of tax. 7. It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the Court to take stock to determine the nature of the new and sophi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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