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TMI Blog2021 (9) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... perts demonstrate that the Styrene content is not decisive on whether or not the goods would fall for classification as Latex. The Tribunal has not looked into the merits of the appeals at all on the facetious ground that the show cause notice did not contain any basis to doubt the classification of the goods and that while issuing the notice, the adjudicating authority had not examined the classification based on the report of the laboratory. The findings of the Tribunal are contrary to the record and cannot therefore be sustained. Since the Tribunal has not considered the case of the respondent in appeal on merits, it would be appropriate to restore the proceedings back to the Tribunal for the purpose - Appeal allowed by way of remand. - Civil Appeal Nos 5644-5645 of 2021 - - - Dated:- 21-9-2021 - Justice Dhananjaya Y Chandrachud, Justice Vikram Nath And Justice Hima Kohli For the Petitioner : Ms. Aishwarya Bhati, ASG Ms. Vishakha, Adv. Mr. Mukesh Kumar Maroria, AOR For the Respondent : Mr. Surender Kumar Gupta, AOR Mr. Neeraj, Adv. Mr. Chivan Singhal, Adv. Mr. Prashant Rawat, Adv. JUDGMENT Dr Dhananjaya Y Chandrachud, J 1. Admit. 2. These app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation in terms of Section 111(m) of the Customs Act 1962; (ii) The goods were chargeable to anti-dumping duty; and (iii) The respondent was liable to pay interest under Section 28AB and penalty under Section 112(a) read with Section 118(a) of the Customs Act 1962. 6. Appeals were filed before the CESAT by the respondent against the decision of the Commissioner. The CESAT allowed the appeals by its order dated 27 September 2017 and came to the conclusion that the Show Cause Notices could not be sustained. 7. The Tribunal has allowed the appeals on the basis of two findings. The first finding is as follows: There is no whisper of any reason in the show-cause notice to disturb the classification claimed by the appellant. Therefore, the classification of the imported declared by the appellant under CTH 40021100 remained untouched by this order. Anti- dumping notification indicates that the goods falling under customs heading Nos.3903 and 4002 of the first schedule to the Customs Tariff Act, 1975 were subject to levy of anti-dumping duty. Accordingly, levy was confined to the goods of heading 4002.19 since anti-dumping investigation was confined to the goods cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject goods originating in or exported from the above countries by a Notification dated 26 July 2004, for an additional period of six months up to and inclusive of 25 October 2004. On a sunset review, the Designated Authority had rendered its findings on 27 July 2004 coming to the conclusion that: (i) subject goods, originating in or exported from subject countries has been exported to India below normal value, resulting in dumping; (ii) the domestic industry is suffering material injury; (iii) dumping of subject goods is continuing from the subject countries; and (iv) the material injury to the domestic industry may continue and intensify if anti-dumping duty is removed. Hence, in exercise of the powers conferred by sub-sections (1) and (5) of Section 9A of the Customs Tariff Act 1975 read with Rule 23 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995, the Central government imposed an anti-dumping duty as specified in the following table: SI No Country Name of exporter / producer Amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Designated Authority was SBR of 1500, 1700 and 1900 series falling under CTH 4002.19 of the Customs Tariff Act 1975 but not goods covered by the CTH 40021100. The Tribunal, as is evident from the two extracts of its decision which have been reproduced earlier came to the conclusion that: (i) No basis was indicated in the show cause notice to disturb the classification claimed by the respondent as the result of which the declaration by the respondent that the goods fell under CTH 40021100 remained untouched ; and (ii) While issuing the notice to show cause, the adjudicating authority had not examined the classification based on the Laboratory report. 12. Ms Aishwarya Bhati, Additional Solicitor General appearing on behalf of the appellant submits that both the underlying findings of the Tribunal are flawed for the following reasons: (i) The notice to show cause dated 23 May 2006 contained a specific reference to the fact that the test report by the Indian Rubber Manufacturers Research Association ( IRMRA ) dated 6 March 2006 had revealed that the goods were found to be SBR of 1900 series and since the goods originated in Korea R.P. they were subject to anti-dumping dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 series is a dry polymer, which is incapable of existing in a liquid form. Unlike Latex, SBR of 1900 series has wide application in the footwear industry and in the manufacture of V Belts. In other words, while SBR of the 1900 series is a dry polymer, the goods imported by the respondent were in a liquid form and hence, according to the respondent, fall for classification under CTH 40021100 as Latex. In this context, reliance was sought to be placed on the Vanderbiit Rubber Handbook and an opinion obtained from the University of Mumbai. On the above premises, it was submitted that the goods which were imported fall under CTH 40021100. It was urged that the literature indicates that goods imported in a liquid form would fall for classification as Latex and the opinions of experts demonstrate that the Styrene content is not decisive on whether or not the goods would fall for classification as Latex. 15. The Tribunal has set aside the decision of the Commissioner of Customs on an evidently superficial evaluation of the issues raised in the appeals. The Tribunal came to the conclusion that there is no whisper of any reason in the Show Cause Notice to disturb the classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diene Rubber (SBR) of 1900 Series. As importer is an actual user of the goods ii question and was aware of the Anti Dumping duty notification no: 100/2004 issued on 28.09.2004 at the time of filing of import documents, it appears that the importer willfully did not declare the proper and complete description of the goods in import documents with the intention to evade the Anti dumping duty. A similar allegation was contained in the second show cause notice. The Commissioner of Customs specifically dealt with the contents of the test reports in paragraph 6.2 of the order dated 17 October 2006, which is extracted below: 6.2 As has been extracted at paras 4 and 5 supra, the said Importer has heavily argued that the Test Reports of IRMRA are Inconclusive and have sought for the cross examination of the official of the IRMRA. For the reasons recorded here under, I am not persuaded by these arguments of the said Importer. As per the facts, it may be seen that, initially, samples of Lutex 701 and Lutex 780 were drawn for tests to be done by the Dy. Chief Chemist, CCRL Nhava Sheva to ascertain (1) composition (2). percentage of Styrene, and (3) whether the goods are Styrene Butad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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