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TMI Blog2019 (10) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... t considered necessary by the appellant at that time to specifically describe the product because provisional Safeguard Duty under the Notification dated 23 March, 2009 was levied at the rate of 35% on all goods falling under Heading No.7607 (Aluminium foil) - The order passed by the Deputy Commissioner (Refund) mentions that it is not necessary to examine the technical specification provided by the appellant for the reason that the goods had been cleared from Customs and were not available for cross checking the authenticity of the technical specification. It has also been observed that there was no documentary evidence to verify the technical specification prescribed in the Notification at the time of import, particularly when the thickness specified was an important aspect to be considered. It is seen from the order of the Commissioner (Appeals) that the supporting documents have been examined but no specific reasons have been assigned as to why the chemical property do not satisfy the requirement of (f) of B of the Notification dated 19 June, 2009 and only a bald statement has been made. The supporting documents filed by the appellant do require an examination so that a find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nium Flat Rolled Products) and 7607 (Aluminium Foil) imported to India from People s Republic of China. The provisional Safeguard Duty imposed by the Notification was to be effective upto and inclusive of 08 October, 2009, unless revoked, superseded or amended earlier. 4. The Director General (Safeguard), in the Final findings dated 29th May, 2009, concluded that increased imports of Aluminium Flat Rolled Products and Aluminium Foil into India from People s Republic of China had caused and threatened to cause market disruption to domestic industry of Aluminium Flat Rolled Products and Aluminium Foil and necessitated the imposition of definitive safeguard duty on imports of Aluminium Flat Rolled Products and Aluminium Foil to India from People s Republic of China. 5. Thereafter, based on the above final determination, a Notification was issued imposing Safeguard Duty. As the present appeal relates to Aluminium foil falling under Heading No.7607, only that portion of the Notification dated 19 June, 2009 relating to Aluminium foil is reproduced below: NOTIFICATION NO. 71/2009 CUSTOMS DATED 19 JUNE, 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industry, then, it may, by notification in the Official Gazette, impose a safeguard duty on that article: Provided that the Central Government may, by notification in the Official Gazette, exempt such quantity of any article as it may specify in the notification, when imported from the People s Republic of China into India, from payment of the whole or part of the safeguard duty leviable thereon. (2) The Central Government may, pending the determination under sub-section (1), impose a provisional safeguard duty under this sub-section on the basis of a preliminary determination that increased imports have caused or threatened to cause market disruption to a domestic industry: Provided that where, on final determination, the Central Government is of the opinion that increased imports have not caused or threatened to cause market disruption to a domestic industry, it shall refund the duty so collected: Provided further that the provisional safeguard duty shall not remain in force more than two hundred days from the date on which it was imposed. xxxxxxxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtains to the Aluminium Foil so imported by them against 30 Bills of Entry during the period 30.03.2009 to 29.04.2009 is hardly having any force since the goods have already been cleared from Customs Area and are not available to cross check the authenticity of the technical specifications so provided by them. Thus, I am not inclined to rely and accept the plea taken by the importer that the technical specifications so provided at this stage are having any relevancy or bearing which qualify them to avail the exemption of safeguard duty under Not. No.71/2009-Cus dated 19.06.2009 for the Aluminium Foil imported by them during the said period. Further as per section 149 of the Customs Act, 1962 the importer was at his liberty to get the amendments made in the Bills of Entry and to add the technical specifications (if any, available at the time of import) but before the clearance of the Aluminium Foil imported by them against said Bills of entry pertaining to the refund of safeguard duty. The importer has also failed to avail this opportunity at the time of import of Aluminium Foil. Furthermore, there is no documentary proof to qualify the technical specificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LG Korea and the specifications of the aluminium foil provided by them, appellant had entered into agreement with foreign supplier, M/s Zhenjiang Dingsheng Aluminium Industries, China for supply of the aluminium foil and had approved the technical specifications of the goods to be supplied by the foreign supplier in conformity with the drawing provided by LG Korea. Appellant had been regularly importing the aluminium foil from the same supplier since long. Copies of the technical specifications dated 11.03.2006 to 03.01.2008 06.01.2010 of the foreign supplier for blue/golden aluminium foil (Annexure-5 of the appeal filed earlier), duly approved, by the appellants clearly show that all the requirements of Notification No.71/2009-Cus dated 19.06.2009 stand satisfied. 7. After the approval of these technical specifications, appellant had been placing purchase orders on the foreign supplier quoting Part No.3H02774C for Aluminium Foil PCM (Blue) and Part No.3H02774E for Aluminium Foil PCM (Gold). 8. It is submitted that the appellants had taken this argument in the appeal filed earlier. However, the appellants missed to attach the drawing provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking refund of the provisional Safeguard Duty that was paid by the appellant, but the said application has wrongly been rejected both by the Deputy Commissioner (Refund) and the Commissioner (Appeals); (iii) No doubt the bills of entry submitted by the appellant did not specifically describe the imported goods, but they did refer to the bills of lading and its number and the invoices enclosed with the bills of lading mentioned Part No.3H02774E; (iv) In some bills of lading and commercial invoices, Part No. mentioned is 3H02774C for the reason that this part is for Aluminium Foil PCM (Blue), and Part No.3H02774E is for Aluminium Foil PCM (Gold); (v) The Part No. can be linked to the product from the technical specifications which make it clear that post brazing yield strength was greater than 45MPA and thickness was 0.1mm; (vi) The requirement of (f) in B of the Notification dated 19 June, 2009, therefore, stood satisfied and the appellant was exempted from paying Safeguard Duty on Aluminium foil; (vii) The Deputy Commissioner (Refund) and the Commissioner (Appeals) failed to examine this aspect and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red necessary by the appellant at that time to specifically describe the product because provisional Safeguard Duty under the Notification dated 23 March, 2009 was levied at the rate of 35% on all goods falling under Heading No.7607 (Aluminium foil). Learned counsel for the appellant has, however, submitted that if the details mentioned by the appellant in the bill of lading, the invoices, the product specification and technical drawings are taken into consideration, there would be no doubt that the Aluminium foil imported by the appellant from China would fall under the exempted category in clause (f) of B of the Notification dated 19 June, 2009. The appellant has made elaborate submissions on this aspect which have been noted in submissions made by the appellant and, therefore, are not being reproduced. 20. The order passed by the Deputy Commissioner (Refund) mentions that it is not necessary to examine the technical specification provided by the appellant for the reason that the goods had been cleared from Customs and were not available for cross checking the authenticity of the technical specification. It has also been observed that there was no documentary evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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