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TMI Blog2004 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... een made under Section 9A for the imposition of duty known as Anti-Dumping Duty. The Larger Bench came to the conclusion in that case that the provisions of Section 27 of the Customs Act do not apply to refund of anti-dumping duty. The learned Advocate has referred to the decision of the Tribunal in the case of M/s. D.C.W. Ltd. v. CC [ 2002 (1) TMI 228 - CEGAT, CHENNAI] , in which the Tribunal, following the decision of the Larger Bench in Caprihans case, had allowed the Appeal and the Appeal filed by Revenue has been dismissed by the Supreme Court, after condoning the delay in Civil Appeal [ 2003 (1) TMI 743 - SC ORDER] . Accordingly the provisions of Sections 111, 112 and 114A of the Customs Act were not applicable when the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation conducted by the Revenue concluded that the impugned goods were of Thailand origin and the original Bills of lading was exchanged with 6 switch bills of lading issued by N.Y.K. Taiwan, the shipper, showing the port of loading as keeling, Taiwan whereas the original Bills of lading clearly showed the place of loading as Bangkok; that a show cause notice dated 5-11-99 was issued, covering not only the said two consignments, but also four other Bills of Entry dated between 17-7-98 and 14-12-98; which has culminated in the impugned order. 3.1 The learned Advocate, further, submitted that though they are not disputing the country of origin of goods being Thailand, they had not misdeclared the country of origin; that they had declared t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gin was specified by them in Bill of Entry with reference to the Certificate of Origin that accompanied the consignment; that Proviso to Section 28 of the Customs Act is not invocable as there is no wilful misstatement or collusion on their part; that they had demonstrated that they had no role in determining the country of origin of the goods; that similarly provisions of Sections 114A and 28AB are not invocable. 3.2 Finally, the learned Counsel submitted that the levy of anti-dumping duty is governed by Section 9A of the Customs Tariff Act; that sub-section (8) was inserted in Section 9A by the Finance Act, 2000 with effect from 12-5-2000; that prior to this amendment, there was no provision under Section 9A for even recovery of anti-dum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has been paid by the Appellants, it cannot be claimed back as their liability to pay the duty was always there. In this regard, the learned Advocate referred to the provisions of Rule 18 and Rule 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (Rules 1995 in short) which empowers the Central Government to impose by Notification anti-dumping duty; that in exercise of the powers conferred by these Rules read with Section 9A(1) of the Customs Tariff Act, Notification No. 81/97-Cus., dated 24-10-97, as amended has been issued by the Central Government imposing Anti-dumping duty in respect of acrylic fibre. He also mentioned that Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dumping duty on acrylic fibre originated from Thailand. As it is not in dispute that the impugned acrylic fibre, imported by the Appellants, has originated from Thailand, the anti-dumping duty @ specified in the Notification is payable by the Appellants. The Appellants had deposited the duty during the course of investigation itself. We find substantial force in the contention of the learned Advocate for the Revenue that once the duty legally payable by them has been paid, the question as to whether there was any provision in the Act at the relevant time for demanding the duty or not is irrelevant. As the duty, which is legally payable by them, stands paid by the importer, we do not go into the question as to whether the show cause notice c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Tariff Act, in May, 2000, these provisions are not applicable in view of the decision of the Delhi High Court in Pioneer Silk Mills case, affirmed by the Supreme Court. We find force in the submission of the learned Advocate as sub-section (8) reads as under : "(8) The Provisions of the Customs Act, 1962 (52 of 1962) and the Rules and Regulations made thereunder, relating to non-levy, short-levy, refunds and appeals shall, as far as may be, apply to the duty chargeable under this Section as they apply in relation to duties leviable under that Act." 7. The Delhi High Court in Pioneer Silk Mills case observed that Chapter II of the Central Excise Act dealing with levy of duty contains provisions of offences and penalty and all the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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