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TMI Blog2023 (10) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... are Mill edge and liable to payment of anti-dumping duty is beyond doubt therefore the demand for 31 coils is upheld. Whether the Department was right in reopening the assessments for the past imports based on their investigations? - HELD THAT:- The Revenue can reopen the assessments after out of charge being given if investigations proved deliberate attempt to evade duty based on the incriminating documents if unearthed by the Revenue. The law laid down by the Hon ble Court and maintained by the apex court in the case of VENUS ENTERPRISES VERSUS COMMISSIONER [ 2007 (1) TMI 564 - SC ORDER] relied by the learned Authorised Representative clearly allows the Revenue to reopen the assessments if on investigation and evidences surface subsequently to prove misdeclaration or undervaluation of already assessed and cleared goods. Whether these reports can be extrapolated to the consignments already cleared and assessed to duty by the customs authorities? - HELD THAT:- The 13 consignments which were imported earlier were from the same supplier is not in dispute and the price quoted in the earlier consignments when compared to the present consignments are more or less the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that in 13 more consignments of same description that had been imported between 12.6.2013 to 6.10.2014 were also leviable to antidumping duty. Based on these investigations notice was issued on 29.4.2015 demanding anti-dumping duty for all the consignments imported for the period 12.6.2013 to 6.10.2014 along with interest. The Commissioner confirmed the anti-dumping duty and imposed penalty under section 112 and 114AA. The goods were also confiscated under section 111(m) but were allowed to be redeemed under section 125 of the Customs act 1962. 2. The learned counsel on behalf of the appellant submitted that the 13 consignments which were imported earlier were physically examined and released on payment of assessed duty, which have attained finality and therefore, the question of reviewing the same without filing an appeal against the assessment order is not justifiable. He places reliance on the decision of the Supreme Court in the case of Flock India Pvt. Ltd.: 2000 (172) ELT 285 SC and Priya Blue Industries: 2004 (172) ELT 145 (SC). With regard to 8 Bills of Entry filed between 12.6.2013 and 8.4.2014 submits that the demand was barred by limitation prescribed under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xim vs. CC, Mundra, Final order No. A/12326/2021 dated 31.8.2021 (Tri.-Ahmedabad). 4. The Authorised Representative on behalf of the Revenue submitted that the present Bill of Entry filed by the appellant was examined by the Chartered Engineers and they certified that the goods were CR steel flat sheet coils of mill edged and this was also examined by M/s. SGS India Private Limited who had also confirmed that the coils were of mill edged and this was also accepted by the appellant vide his statement dated 30.10.2014. With regard to the earlier consignments, he submitted that the Bills of Entry had identical description and it is claimed that mill edged coils are rough edged coils which are further worked upon to produce slit edged coils and therefore, the slit edged coils are more expensive than the mill edged coils. Since the value of the earlier consignments was similar to the present ones it is evident that they were also mill edged coils. He further submitted that imports from other suppliers, the appellant had clearly instructed them to mention slit edged and the evidences recovered clearly show that the appellant had asked the suppliers to mention the specifications in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be availed on the facts of this case, but has fairly stated that if the notes to Heading No. 55.08 are to be read, considering the fact that there was no support to the sewing thread manufactured by the appellant, it would not be covered by the exemption Notification which would only apply if goods manufactured fall within the particular Heading mentioned. As it is clear that the sewing thread is not put up on a support, CESTAT is clearly right on merits. Equally, we do not think that there is any ground for interference on the extended period of limitation being applicable inasmuch as CESTAT is again correct in saying that as the declaration and RT-12 returns being vital documents submitted by the respondent (appellant herein) did not mention the vital word hanks , they suppressed a material fact which, to their knowledge, would not bring their sewing thread within the exemption Notification. For all these reasons, we find no merit in these appeals. The appeals are, accordingly, dismissed, without any order as to costs . 6. Finally, it is claimed that the Commissioner was justified in imposing penalty in as much as the appellant had knowingly to avoid payment of anti-dumpin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject goods vide notification No. 38/2009-Customs, dated the 22nd April, 2009, published in Part II, Section 3, Sub-section (i) of the Gazette of India, Extraordinary, vide number G.S.R. 276 (E), dated the 22nd April, 2009 as amended by notification No. 56/2009-Customs, dated the 30th May, 2009, published in Part II, Section 3, Sub-section (i) of the Gazette of India, Extraordinary, vide number G.S.R. 370(E), dated the 30th May, 2009; And whereas, the designated authority, vide its final findings vide notification No. 14/6/2008-DGAD dated 24th November, 2009, published in the Gazette of India, Extraordinary, Part I, Section I, dated the 24th November, 2009, has come to the conclusion that (a) the subject goods have been exported to India from the subject countries below its normal value; (b) the domestic industry has suffered material injury; (c) the injury has been caused by the dumped imports from subject countries. and has recommended to impose definitive anti-dumping duties on all imports of the subject goods, originating in, or exported from, the subject countries; Now, therefore, in exercise of the powers conferred by sub-sections (1) and (5) of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chinese Taipei Any Any Any other than at S.No. 20 above 200 1293.62 MT US Dollar 22 7219 Cold-rolled Flat products of stainless steel* Chinese Taipei Any Any Any Any other than at S.No. 21 above 400 1446.17 MT US Dollar 23 7219 Cold-rolled Flat products of stainless steel* Any Chinese Taipei Any Any other than at S.No. 20 above 200 1293.62 MT US Dollar Cold-rolled Flat products of stainless steel* Any Any other than at S. No. 20 and 21 above. 300 2254.69 MT US Dollar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts based on their investigations. We agree with the learned Authorised Representative that the Revenue can reopen the assessments after out of charge being given if investigations proved deliberate attempt to evade duty based on the incriminating documents if unearthed by the Revenue. The law laid down by the Hon ble Court and maintained by the apex court in the case of Venus Enterprises (supra) relied by the learned Authorised Representative clearly allows the Revenue to reopen the assessments if on investigation and evidences surface subsequently to prove misdeclaration or undervaluation of already assessed and cleared goods. 12. Now the question arises whether these reports can be extrapolated to the consignments already cleared and assessed to duty by the customs authorities. The 13 consignments which were imported earlier were from the same supplier is not in dispute and the price quoted in the earlier consignments when compared to the present consignments are more or less the same. It is also not under dispute that the slit edge coils are more expensive when compared to the Mill edge coils because the Mill edge coils are trimmed and slit to size to arrive at a uniform wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Tables extracted below goes to state that they are identical goods. Going by the definition of identical goods as per the Customs Valuation Rules, 2007 holds that the previous consignments as identical goods. Further, he holds that since slit edged coils are more expensive and based on the NIDB data holds the value of the live consignment and the earlier consignments were of more or less the same value and concludes to be mill edged coils and not slit edge coils. Based on the statements and the mails as discussed above, the Revenue assumes that the earlier consignments are nothing but mill edged coils and therefore, they are liable to duty. 14. The Tribunal in the case of R.R. Enterprises Versus CC CE, Hyderabad 2014 (312) E.L.T. 677 (Tri. - Bang.) dated 24-9-2010 held that: 12. As regards past imports covered by Bills of Entry dated 12-5-2000 and 7-10-1999, we have found no case for the Revenue. It appears that the yardstick applied in relation to the live consignment has been mechanically extended to the past imports. We do not think that the view taken in respect of the live consignment can be extrapolated mindlessly to cover the past imports. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sure of the same fact. The composition of the fabrics may vary or change from the consignment to consignment inasmuch as there is not much difference in the wool content of the fabrics. Revenue has not given us any reason as to why the ratio of Tribunal s decision in the case of Shalimar Paints (supra) which stands upheld by the Hon ble Supreme Court, is not applicable to the facts of the present case. Apart from the decision of Shalimar Paints, we note that there are number of other precedent decisions holding to the same effect . 15. In the present case, investigations have only proved that the appellant was aware of the fact that anti-dumping was leviable on mill edged coils and he had imported some of the consignments from other suppliers with the specifications regarding mill edged or slit edged. However, no incriminating documents were unearthed to prove the consignments cleared earlier were mill edged coils. Moreover, to say they are identical goods based on definition of Customs Valuation Rules, 2007 and to presume since the value is same for the live consignment where it has been held that it is mill edged only after examination cannot be the standard for deciding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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