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TMI Blog2024 (10) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... orts of pre-sensitized positive offset aluminum plates of thickness ranging from 1.5 mm to .40 mm falling under Chapter 37, 76 or 84. Pursuant to the findings of said review, the notification 25/2014 had extended anti-dumping duty on PS aluminum plates originating in or exported from China PR at the rate of .22 per USD per kg for a period of 5 years. It becomes clear that though the plates imported by the respondent are not proved to be CTCP aluminum plates but these admittedly are pre sensitized aluminum plates against which also there is an imposition of anti dumping duty w.e.f. 10.03.2014 till 09.03.2019. The impugned Bill of Entry is of February, 2015. Hence it stands clear that the respondentimporter is liable to pay anti-dumping duty at the rate of .22 USD per kg. Commissioner (Appeals) has ignored the said notification while setting aside the order of imposition of ADD by the original adjudicating authority. Though the quantum confirmed by original authority has to be recomputed at the .22 USD instead of .40 USD per kg. It is apparent from the documents placed on record by the department in the form of test memos and test reports that the goods imported through Bill of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,233/- along with the interest is also held to be the respondent-importer s liability - the original order imposing the penalty of Rs. 2.40 lakhs under Section 112(a) and the same amount of penalty under Section 114AA of the Customs Act as was imposed by the original adjudicating authorities, restored - the order of Commissioner (Appeals) is hereby set aside and the department s appeal stands allowed. - HON BLE DR. RACHNA GUPTA , MEMBER ( JUDICIAL ) And HON BLE SHRI P.V. SUBBA RAO , MEMBER ( TECHNICAL ) Shri Rakesh Kumar , Authorized Representative for the Appellant Shri Abhas Mishra , Advocate for the Respondent ORDER DR. RACHNA GUPTA Present is an appeal filed by the department to assail the Order-in-Appeal bearing No. 1514/2021-22 dated 11.01.2022. The brief facts culminating into the said adjudication are that the respondent is an importer who imported a consignment covered under Bill of Entry No.8422708 dated 25.02.2015 filed through their customs broker namely M/s. Amethi Shipping and Clearing for importing goods declaring them as Aluminum PS Printing Plates classifying them under CTH 84425020. The department based on the specific intelligence about misdeclaration being co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential anti-dumping duty amounting to Rs.23,33,840/- was also proposed to be recovered. The penalty under Section 112(a) and Section 114AA of the Customs Act, 1962 was also proposed to be imposed. The proposal was confirmed vide Order-in-Original No. 10/2021 dated 29.01.2021. The appeal filed by the importer against the said order has been allowed while setting aside the findings in the said Order-in-Original. Being aggrieved the department is before this Tribunal. 2. We have heard Shri Rakesh Kumar, learned Authorized Representative for the department and Shri Abhas Mishra, learned Advocate of the respondent. 3. Learned Departmental Representative has submitted that the issue in the appeal pertains to classification as well as imposition of anti-dumping duty pursuant to Notification No.51/2012 dated 03.12.2012 and Notification No.25/2014 dated 09.06.2014 on the goods imported by the respondent-importer. The respondent by wrongly declaring the imported goods as Pre Sensitized (PS) aluminium plates has wrongly classified them under CTH 84425020 instead of classifying those under CTH 3701. The BCD under CTH 8442 is at the rate of 7.5% whereas under CTH 3701 it is at the rate of 10%. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the antidumping duty on such plates. With these submissions and impressing upon that the act of evading duty is an act of suppression that the extended period has rightly been invoked while issuing the show cause notice, learned Departmental Representative has prayed for the Order-in-Appeal to be set aside and the department s appeal to be allowed. 4. While rebutting these submissions, learned counsel for the respondent-importer has submitted that the cross-examination of technical person of M/s. Don Bosco Technical Institute has falsified the case of the department that the plates in question are CTCP plates on which is imposed anti-dumping duty in terms of Notification No. 51/2012. The findings of Commissioner (Appeals) on this aspect have been reiterated as given in Para 5.3 of the Order-in-Appeal. It is submitted that the sole basis to hold the imported goods to be CTCP plates was the test report when the same has been found unreliable, there remains no ground to differ from the declaration made by the respondent-importer in the Bill of Entry. 4.1 With respect to the appropriate CTH, it is mentioned that the imported goods are alleged to fall under CTH 3701 purely on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said report has confirmed that the imported goods are aluminium plates with PS coating for printing purpose. Simultaneously, it has been reported that the plates are CTCP Printing plates. The cross-examination of the technical expert from M/s. Don Bosco Laboratory, as has been relied upon by Commissioner (Appeals) to set aside the imposition of anti-dumping duty demand, reveals that the CTCP plates are acknowledged to be green in colour and he also admitted that they also conducted manual testing and the testing on CTCP machine was outsourced by them. However, no details from the different source about machine testing were ever placed on record. Since outsource testing had been the reason for not having test report from the Government institute the test report from a private institute which is also lacking the proper infrastructure for CTCP machine testing and which also has outsourced the testing, should not have been relied upon. There is no other evidence on record than the said test report. We do not find any infirmity in such findings arrived at by Commissioner (Appeals). Resultantly, we hold that there is no evidence on record to prove that the pre-sensitized aluminum pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 as the correct classification holding that as per Notification No. 51/2012 the digital printing plates can fall under Chapter 37, 76 or 84. It has been held that when the goods fall under more than 1 heading it should be classified under the heading which occurs last in the numerical order. To adjudicate the correctness of the said findings we foremost perused the chapter headings of both the CTH. Chapter Heading 8442 reads as follows: HS Codes of Heading 8442: Machinery, apparatus and equipment (other than the machine-tools of headings 8456 to 8465), for typefounding or type-setting, for preparing or making printing blocks, plates, cylinders or other printing components printing type, blocks, plates cylinders. Chapter Heading 3701 reads as follows : Photographic plates and film in the flat, sensitized, unexposed, of any material other than paper, paperboard or textiles, instant prinfilm in the flat, sensitized, unexposed, whether or not in packs. 7.1 The bare perusal is clear enough to hold that Chapter Heading 8442 essentially talks about machines, apparatus or equipments for making printing components whereas Chapter Heading 3701 specifically talks about of photographic plates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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