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TMI Blog2015 (8) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ti-dumping duty can be included in calculating special customs duty and special additional duty. - Held that:- It was clear that no exception was carved out before 19.5.2000 in favour of Blast Furnace Manufacturers either when provisional Anti-dumping duty was first imposed or when final Notification was issued Therefore Notification of 2000 creating exception in favour of persons like appellant had no reference to earlier proceedings and was obviously intended to apply only prospectively Additional duty and special additional duty as per Customs tariff act, was only surcharge or additional duty of customs whereas Anti-dumping duty apart from being levied separately from levy of customs duty was also levied in completely different manner from that of customs duty After 2002, provision relating to additional duty and special additional duty have been amended so as to expressly not include Anti-dumping duty Impugned judgment of CESTAT set aside Appeal allowed Decided in favour of assessee. Levy of penalty - Held that:- the appellant has not diverted goods meant for export to the domestic tariff area. We are satisfied that market considerations made it difficult, if not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication of the show cause notice by the Commissioner, the appellant duly paid the entire duty payable towards BCD, SAD and SCD after considering partial exports already made. The appellant did not make any payment towards ADD. 6. The Commissioner of Customs vide Order dated 4.11.2004 confirmed the duty demand of ₹ 3.37 crores and imposed a penalty of Rupees Twenty lakhs. According to the learned Commissioner, since the appellant after issuance of the show cause notice paid duty of ₹ 1,66,18,563/-, the differential duty to be paid amounted to ₹ 1,70,98,510/-. Further, interest on the said amount at 24% was also held to be payable. 7. The appellant appealed to CESTAT. Vide the impugned judgment dated 18.8.2005, CESTAT partly allowed the appeal by remanding the matter to the original authority to calculate duty, interest, and penalty in accordance with the findings contained in its judgment. The basic difference between CESTAT s judgment and that of the Commissioner is that interest was reduced from 24% to 15%, but the Anti-dumping duty was increased by applying the higher rates specified by the final Notification No.69 of 2000. 8. Shri Lakshmikumaran, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable as Notification No.30 of 1997 independently levied a charge of interest. Further, he also supported the Commissioner s order and the Tribunal so far as the various other aspects of this appeal are concerned. 10. We have heard learned counsel for the parties. In order to appreciate the first submission of Shri Lakshmikumaran, namely, that Anti-dumping duty in the present case ought to be nil, we set out the relevant Notifications Notification: 22/98-Cus. Dated 06-May-1998 Metallurgical coke originating in or exported from China PR Anti-dumping duty In exercise of the powers conferred by sub-section (2) of section 9A of the Customs Tariff Act, 1975 (51 of 1975), read with rule 13 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government on the basis of the preliminary findings of the designated authority, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 20th March, 1998 that there is dumping in respect of the Metallurgical coke falling under Heading No. 27.04 of the First Schedule to the said Act, and originating in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the light of the above discussions and findings based on the data available on record, we pass the following orders:- 1. All imports of metcoke exported from or originating in the People s Republic of China to India be subjected to anti-dumping duties at the following rates as indicated against each exporter:- 1. China National Coal Industry : Import/Export (Group) Corporation. 18.35US$ 2. China National Mineral Import and : Export Corporation. 24.51US$ 3. Shanxi Coal Import Export Group : Corporation. (Minmetal Group). 19.22US$ 4. Ningxia Xiacheng Import Export : Corporation. 24.95 US$ 5. China North Industries Corporation. : 22.69 US$ 6. Shanghai Pacific Chemicals (Group) : Corporation Ltd. 19.22 US$ 7. All other exporters. : 24.95 US$ 2. Subject to these modifications, the final findings dated 27th August, 1998 of the D.A. are confirmed. The Corrigendum dated 2nd September, 1998 is set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. 13. The bone of contention in the present appeal is the last paragraph of this Notification. 14. It is clear that under Rule 20(2)(a) of the Customs Tariff (Identification, Assessment And Collection of Antidumping Duty on Dumped Articles and For Determination of Injury) Rules, 1995, where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or threat of injury and the further finding that the effect of imports in the absence of provisional duty would have led to injury, the Anti-dumping duty may be levied from the date of imposition of provisional duty. In the present case, therefore, it will be noticed that the final Notification dated 27.10.1998 is said to come into force from the date of the first Notification dated 6.5.1998 imposing provisional duty in the present case. It is clear that as the final Notification dated 27.10.1998 has been superseded by the Notification dated 19.5.2000, the appellant would have had to pay Anti-dumping duty at the rate of US$ 24.95 per metric tonne as indisputably it falls within Item No.7 of the said Notification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed upon the Blast Furnace Industry had an adverse impact upon the industry and that the intention of levying an Anti-dumping duty was not to harm their interests. Paragraphs 6 and 7 of the said minutes in particular seem to suggest that the exemption that was contemplated by the minutes of such Blast Furnace units was something that could take place only in the future. 17. Quite apart from this, it is clear that no exception was carved out before 19.5.2000 in favour of Blast Furnace Manufacturers either when the provisional Anti-dumping duty was first imposed or when the final Notification dated 27.10.1998 was issued. It is clear that the last part of the Notification dated 19.5.2000 creating an exception in favour of persons like the appellant has no reference to the earlier proceedings in the case and is obviously intended to apply only prospectively. This is also clear from the language used in the said clause nothing contained in the Notification shall apply to imports . Using a Blast Furnace if he follows the procedure set out in the Customs import of goods at concessional rate of duty for manufacture of excisable goods Rules, 1996 . The language of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials in respect of which the conditions specified in this notification have not been complied with, together with interest at the rate of twenty-four percent per annum from the date of clearance of the said materials. 20. A reading of this Notification makes it clear that interest at the rate of 24% per annum is only liable to be paid if at the time of clearance of the imported materials the importer executes a bond in which such interest is stated to be payable. We have been shown the bond executed in the present case. It says nothing about any interest that is payable in case the conditions of the Notification No.30 of 1997 are not met. On this short ground alone, it is clear that no interest is payable on any of the customs duties that are due from the appellant. 21. It was also argued by Shri Lakshmikumaran that Section 101 of the Finance Act, 2009 has been given a retrospective application with effect from 1.1.1995. Section 9A sub-section (8) as substituted with effect from 1.1.1995 reads as follows:- (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to date of determination of rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying of interest can only be by a substantive provision (See: J.K. Synthetics Ltd. v. Commercial Taxes Officer, (1994) 4 SCC 276 at paragraph 16), thereby making it clear that such levy can only be prospective. 25. Further, in India Carbon Ltd. v. State of Assam, (1997) 6 SCC 479, this Court held:- 11. Section 9(2-A) makes applicable to the assessment, re-assessment, collection and enforcement of Central sales tax the provisions relating to offences and penalties contained in the State Acts as if the Central sales tax was a State sales tax. But Section 9(2-A) makes no reference to interest. 12. There is no substantive provision in the Central Act requiring the payment of interest on Central sales tax. There is, therefore, no substantive provision in the Central Act which obliges the assessee to pay interest on delayed payments of Central sales tax. 13. Now, the words charging or payment of interest in Section 9(2) occur in what may be called the latter part thereof. Section 9(2) authorises the sales tax authorities of a State to assess, reassess, collect and enforce payment of the Central sales tax payable by a dealer as if it was payable under the State Act; this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in sub-section (12) shall be in addition to any duties of customs chargeable on such goods under the Customs Act or any other law for the time being in force. (4) The provisions of the Customs Act and the rules and regulations made thereunder, including those relating to refunds and exemptions from duties shall, as far as may be, apply in relation to the levy and collection of the special duties of customs leviable under this section in respect of any gods as they apply in relation to the levy and collection of the duties of customs on such goods under that Act or those rules and regulations, as the case may be. 29. Similarly, special additional duty is levied under Section 3A of the Customs Tariff Act inserted by the Finance Act of 1998. Section 3A reads as under:- Special additional duty.- (1) Any article which is imported into India shall in addition be liable to a duty (hereinafter referred to in this section as the special additional duty), which shall be levied at a rate to be specified by the Central Government, by notification in the Official Gazette, having regard to the maximum sales tax, local tax or any other charges for the time being leviable on a like a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Tariff Act as it stood at the relevant time reads as under: (2) For the purpose of calculating under this section, the additional duty on any imported article, where such duty is leviable at any percentage of its value, the value of the imported article shall, notwithstanding anything contained in Section 14 of the Customs Act, 1962 (52 of 1962), be the aggregate of- (i) The value of the imported article determined under sub-section (1) of the said Section 14 or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; and (ii) Any duty of customs chargeable on that article under Section 12 of the Customs Act, 1962 (52 of 1962), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of customs 31. Similarly, Section 3A(2) dealing with special additional duty as it stood at the relevant time reads as under:- (2) For the purpose of calculating under this section the special additional duty on any imported article, the value of the imported article shall, notwithstanding anything contained in section 14 of the Customs Act, 1962 or sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government by notification in the Official Gazette, on all goods mentioned in the First Schedule to the Tariff Act as amended by this Act or any subsequent Act of Parliament, a regulatory duty of customs which shall be (a) twenty-five per cent of the rate, if any, specified in the said First Schedule read with any notification issued under Section 3A or sub-section (1) of Section 4 of the Tariff Act; or (b) ten per cent of the value of the goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962 whichever is higher: Provided that different dates may be specified by the Central Government for different kinds of goods. (2) Sub-section (1) shall cease to have effect after the 31st day of March, 1964 except as respects things done or omitted to be done before such cesser; and Section 6 of the General Clauses Act, 1897 shall apply upon such cesser as if the said sub-section had then been repealed by a Central Act. (3) The duty of customs leviable under this section in respect of any goods referred to in sub-section (1) shall be in addition to any other duty of customs chargeable on such goods under the Customs Act, 1962. (4) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time being in force as an addition to, and in the same manner as, a duty of customs, but does not include (a) the special additional duty referred to in section 3A; (b) the safeguard duty referred to in sections 8B and 8C; (c) the countervailing duty referred to in section 9; (d) the anti-dumping duty referred to in section 9A; and (e) the duty referred to in sub-section (1) The amended Section 3A(2) reads as follows:- (2) For the purpose of calculating under this section the special additional duty on any imported article, the value of the imported article shall, notwithstanding anything contained in section 14 of the Customs Act, 1962 or section 3 of this Act, be the aggregate of (i) The value of the imported article determined under sub-section (1) of section 14 of the Customs Act, 1962 (52 of 1962) or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; (ii) Any duty of customs chargeable on that article under section 12 of the Customs Act, 1962 (52 of 1962), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of customs ..... 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