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TMI Blog2004 (10) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... at Mumbai from where the goods were transhipped to the I.C.D., Tuglaqabad, New Delhi; that IGM was filed on 22-4-2002; that they filed Bill of Entry on 22-5-2002; that the Central Government has also imposed Anti-Dumping duty on lead acid batteries (Industrial) by issuing Notification No. 55/2002-Cus., dated 22-5-2002; that the anti-dumping duty is not applicable as the impugned goods had been imported into India much earlier on 22-4-2002; that the Tribunal in the case of C.C., Chennai v. Suja Rubber Industries, 2002 (142) E.L.T. 586 (T) has held that on a clear reading of Section 9A of the Customs Tariff Act, "it indicates that the duty has to be determined when the goods have been imported and are subject for clearance, while those which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004; that by this amendment, provisions of Customs Act "relating to, the date for determination of rate of duty, non-levy, short-levy, refunds, interest, appeals offences and penalties" will be applicable in respect of anti-dumping duty. He mentioned that by this amendment, it is apparent that provisions of Section 15 of the Customs Act, were not applicable to anti-dumping duty prior to the amendment. 4. The learned Counsel also contended that the lead-acid batteries in question are not industrial batteries; that the fact that impugned batteries are to be used in UPS which is no doubt an "industrial" product would not make them industrial; that the word "industrial" would refer to a battery which is used in an industry or in an industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002, after the imposition of the anti-dumping duty, the goods in question are chargeable to anti-dumping duty. Regarding the question as to whether batteries in question are "industrial", learned S.D.R. mentioned that this aspect was not disputed by the Appellants before the lower Authorities and accordingly the Appellants cannot raise this plea for the first time before the Appellate Tribunal. He relied upon the decision in the case of Haryana Acrylic Mfg. Co. P. Ltd. v. C.C.E., New Delhi, 2001 (130) E.L.T. 562 (T) wherein it has been held by the Tribunal that the plea, not raised before the Commissioner, "cannot be heard… at this late stage". Reliance has also been placed on the following decisions: (i) Union of India v. Chemical Process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Tariff Act empowers the Central Government to impose an anti-dumping duty upon the importation of the goods into India if any goods is exported from any country or territory to India at less than its normal value. The Central Government has issued Notification No. 55/2002-Cus., dated 22-5-2002 in exercise of the powers conferred by Section 9A imposing anti-dumping duty on lead acid batteries originating in, or exported from, inter alia, Taiwan. It is the contention of the Appellants that as the goods in question were imported by them on 16-4-2002, when no anti-dumping duty was imposable on the impugned goods, they are not liable to pay anti-dumping duty at the time of clearance of goods on or after 22-5-2002 since the act of import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed additional duty of excise under the said Ordinance was payable on goods manufactured after 4th October, 1978. We are unable to accept the contention of Mr. Ramachandaran that what has to be seen is whether additional duty of excise was payable at the time when the goods landed in India or, as he strenuously contended, they had crossed into the territorial waters. Import being complete, when the goods entered the territorial waters is the contention which has already been rejected by this Court in C.A. Nos. 1257-58 of 1987 (Union of India and Others v. Apar Private Ltd. and Others) decided on 22nd July, 1999 (112) E.L.T. 3 (S.C.). The import would be completed only when the goods are to cross the customs barriers and that is the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs barrier. In the present matter on the date of crossing the Customs barrier, the anti-dumping duty was leviable in terms of Notification No. 55/2002-Cus. and, therefore, anti-dumping duty under Section 9A of the Customs Tariff Act is payable by the Appellants. The decision of the Tribunal in the case of Suja Rubber Industries is not applicable as it has been passed per incuriam the judgments of the Supreme Court in Kiran Spinning and Garden Silk Mills. Thus, the ratio of the decision in Fenner India Ltd., is also not applicable. We also agree with the learned SDR that the Appellants cannot raise the plea that the impugned batteries are not industrial type batteries for the first time before the Appellate Tribunal. The Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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