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TMI Blog2016 (1) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification, it is difficult for me to accept the proposition that the amendment to the entry at Sr. No.19 was retrospective. Classification of imported product will be rightly under Sr. No.23 under Notification dated 23.1.2008. However, after amendment of notification in column 8 of Sr. No.9 of notification dated 24.3.2008, classification will be under Sr. No.19 of notification dt.24.3.2008. Majority decision - amending Notification No. 38/2008-Cus dated 24.3.2008 has only prospective application and does not have retrospective applicability. - Decided against the assessee. - Appeal No. C/75/2009 - Interim Order No. 941 /2014, Final Order No. 53860/2015 - Dated:- 30-12-2015 - Hon ble Mr. D.N. Panda, Judicial Member, Hon ble Mr. Manmohan Singh, Technical Member, R. K. Singh) Member (Technical), B. Ravichandran , Member (Technical) And Justice G. Raghuram, President For the Appellant : Shri Piyush Kumar, Advocate For the Respondent : Shri Rakesh Puri, DR ORDER Per D.N. Panda: Appellant imported PVC resin DG-1000K from China manufactured by M/s. Tianjin Dagu Chemicals Co. Ltd. It agrees that the goods so imported were liable to anti dumping duty b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dated 23.1.2008 imposed duty on the goods exported by Tianjin Bohai Chemical Industries Import and Export Corporation of China appearing in column (8) of Sl.No.19 of that Notification. On 24.3.2008 name of the manufacturer i.e. M/s. Tianjin Dagu Chemicals Co. Ltd. was added in column (8) of Sl.No.19 of the Notification dated 23.1.2008 by an amending notification dated 24.3.2008. Accordingly export by the producer viz. M/s. Tianjin Dagu Chemicals Co. Ltd. in such cases was also leviable to anti-dumping duty in terms of Sl.No.19 of the Notification No.11/2008-Cus dated 23.1.2008. 5. Per contra, Revenue submits that in view of addition of name of manufacturer in Column 8 of sl.No.19 of the Notification dated 24.3.2008, the exports by manufacturer, M/s. Tianjin Dagu Chemicals Co. Ltd. shall be treated as export falling under S.No.19 of Notification dated 23.1.2008 but not prior to that. 6. Rival submission of both gives rise to duty difference between both serial numbers as prescribed by column No.9 of the Notification dated 23.1.2008. But the fact remains the same is that as per bill of entry, export of subject goods was made from China by the producer itself and the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Manmohan Singh D. N. Panda Technical Member Judicial Member Appeal No.C/75/2009 J.P. Overseas Vs. CC, ICD, TKD, New Delhi 8. I have gone through the draft order prepared by the Ld. Member (Judicial) holding that the import of PVC resin by J.P. Overseas would be subjected to anti-dumping duty under entry at Sr.No.19 of Notification No.11/2008-Cus dated 23.01.2008 inasmuch as the subsequent amendment by Notification No.38/2008-Cus dated 24.03.2008 was curative in nature. Since I differ with the view taken by the Ld. Member (Judicial), I am recording my separate findings hereunder. 9. The facts of the case are that the Appellants had imported PVC resin DG-100K from a Chinabased manufacturer Tianjin Dagu Chemical Co. Limited under Bill of Entry dated 24.01.2008. The PVC resin so imported by the Appellants was subject to anti-dumping duty in terms of Notification No.11/2008-Cus dated 23.01.2008. The dispute between the Appellants and the Revenue arose on account of entries at Sr. No.19 and 23 of the said Notification, which are reproduced in Para 3 above. In essence, entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough to cover all other combinations, including the ones where the manufacturers themselves exported the goods. Assuming for a moment that there was no amendment to the existing Notification. In that scenario could it be inferred that the goods manufactured and exported by Tianjin Dagu Chemical Co. would not have attracted any anti-dumping duty My view is that in such a scenario, in the absence of inclusion of the name of Tianjin Dagu Chemical Co. at Sr. No.19 at the time of import, the imports by the Appellants would be covered by entry at Sr. 23. This is more so when the amending Notification does not specifically provide for retrospective inclusion of the name of Tianjin Dagu Chemical Co. at Sr.No.19 from the date of imposition of anti-dumping duty. It is pertinent to mention here that the Appellants had before the lower authorities, and also in the Appeal memo contended that their imports were not covered by entry under Sr. No.19, I am, in the absence of any indication that the name of Tianjin Dagu Chemical Co. was included at Column 8 of entry at Sr. No.19 effective from 23.01.2008, of the opinion that the import made by the Appellant was covered by Sr. No.23 till the amendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such statutory provision, same cannot be given retrospective effect. 13. Para 14 to 16 of the judgement are quoted for ready reference:- 14. It is, by now, well settled that the statutory amendments, either creating fresh liability hitherto no existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect. 15. In other words, it is a well established principle of construction that a statute inconsistent with substantive rights is prima facie considered prospective unless it is expressly or by necessary implication may have been given retrospective operation (refer to the decision of Apex Court in case of Keshavan Medhava Menon v. State of Bombay - AIR 1951 SC 128). 16. Particularly, in fiscal legislation imposing liabilities generally governed by the normal rule is that it is not retrospective in nature. It is, however, equally undisputed that a procedural provision when made applicable to pending proceedings would not be viewed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh) Technical Member Difference of Opinion Whether as per opinion of learned Member (Judicial), amending notification no.38/2008-Cus dated 24.3.2008 making amendment in Sl.No.19 of the Notification No.11/2008-Cus dated 23.01.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty. Or Whether as per opinion of Member (Technical), amending notification no.38/2008-Cus dated 24.3.2008 making amendment in Sl No.19 of the Notification No.11/2008-Cus will be prospective in nature. (Manmohan Singh ) ( D.N. Panda) Member (Technical) Member (Judicial) 15. Vide CESTAT Interim Order No. 941/2014, the following difference of opinion was expressed: Whether as per opinion of learned Member (Judicial), amending Notification No. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/2008-Cus dated 23.1.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty. OR Whether as per opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stt. Commr. of C. Ex., Mysore-III 2012 (276) ELT 335 (Kar.) and Polyplex Corp. Ltd. Vs. Union of India 2014 (306) ELT 377 (All.). (iv) Ld. Advocate agreed that anti-dumping duty is levied in terms of relevant Customs notifications. 17. The ld. DR, on the other hand, pleaded that anti-dumping duty is charged as per the custom notification levying the same and there is nothing in custom Notification No. 38/2008-Cus which gives any reason to apply the same retrospectively and referred to the judgement of Gujarat High Court in the case of CC (Preventive) Vs. Goyal Traders 2014 (302) ELT 529 (Guj.). 18. I have considered the contentions of both sides. At the very outset, it is pertinent to mention that anti-dumping duty is charged in terms of the customs notification issued in that regard and not in terms of the final findings of Directorate General of Anti-Dumping and Allied Duties (DGAD). Indeed the final findingsof DGAD does not levy any anti-dumping duty. It is for the Government to impose anti-dumping duty in the wake of and taking into account the final findingsof the DGAD and when the Central Govt. decides to impose anti-dumping duty, formal custom notification levying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under sub-heading of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), the specification of which is specified in column (4) of the said Table, originating in the countries specified in the corresponding entry in column (5), and exported from the countries specified in the corresponding entry in column (6) and produced by the producers specified in the corresponding entry in column (7) and exported by the exporters specified in the corresponding entry in column (8) and imported into India, an anti-dumping duty at the rate equal to the amount indicated in the corresponding entry in column (9), in the currency as specified in the corresponding entry in column (11) and per unit of measurement as specified in the correspondent entry in column (10) of the said Table. Table S.No. Sub-Heading or Tariff Item Description of goods Specification Country of origin Country of Export Producer Exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e even a hint or shade of retrospective applicability. The contention of the ld. Advocate that Notification No. 38/2008-Cus. was issued in pursuance of the corrigendum dated 14th February 2008 issued by DGAD has been considered. The Customs notification no.38/2008-Cus dated 24.03.2008 makes no reference to DGAD notification no.14.02.2008; indeed it does not give any such indication that it is issued in pursuance of the said corrigendum dated 14th Feb. 2008 and even if it was so, the applicability of the Customs notification will have to be interpreted from the wording used therein. As stated earlier Notification No. 38/2008-Cus. is a simple amending notification by virtue of which amendment was made to Notification No. 11/2008-Cus. It is well settled that a notification always has prospective effect unless a contrary intention is evident from the language thereof. The language of Notification No. 38/2008-Cus. does not contain even a hint or an indication that it was intended to have retrospective effect. Supreme Court in the case of Jaswal Neco Ltd. Vs. CC, Vaizaa 2015-TIOL-173-SC-Cus while, inter alia, dealing with a notification relating to ADD held it to be applicable prospect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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