CBEC by letter in F.No 528/53/2007-Cus (TU) dated 25.10.2007, clarified that anti dumping duty on CFLs imported from Peoples Republic of China and Hong Kong was not leviable/recommended on parts/components of CFLs but only on complete CFLs as mentioned in the relevant Notification No.138/2002-Cus dated 10.12.2002. This was based on a clarification issued by the Directorate General of Anti Dumping and Allied Duties (DGAD) and was necessitated because of reports of confusion whether such duty is also levied on parts/components.

However, Board has now learnt that the said clarification in respect of parts/components of CFLs is being wrongly extended to import of CFLs in CKD/SKD condition.

Board observes, “Rule 2(a) of the General Interpretative Rules is relevant for the purpose of classification of goods imported in CKD/SKD condition. In terms of the said Rule 2(a), any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, the incomplete or unfinished articles has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.”

Board concludes,

Thus, when any article such as CFL is imported in CKD/SKD condition, its classification for purpose of assessment would be done as complete or finished article in terms of the said Rule 2(a). Accordingly, when anti-dumping duty is attracted on any article then it is also to be levied if the said article is imported in CKD/SKD condition either together in one lot or in part shipments.

So the Board wants pending assessments to be finalized accordingly.

CBEC Circular No. 43/ 2010-Cus., Dated: December 6, 2010

Drop in Anti Dumping Measures - WTO

THE WTO Secretariat reported that during the period 1 January - 30 June 2010, the number of initiations of new anti-dumping investigations showed a 29% decrease compared with the corresponding period of 2009. The number of new measures applied also decreased during the first semester of 2010 when compared with the first half of 2009.

The Members reporting the highest number of new initiations during January - June 2010 were India, reporting 17 new initiations, followed by the European Union, reporting 8 new initiations, Argentina (7), Brazil and Israel (5 each).

During the first half of 2010, China was the most frequent subject of the new investigations, with 23 new initiations directed at its exports.  This was a 30% decrease from the 33 new investigations opened in respect of exports from China during January - June 2009. 

The products most frequently affected by these new investigations during the first half of 2010 were in the base metals sector (20 initiations), the chemicals sector (11 initiations), the plastics and rubber sector (7 initiations) and the plaster and ceramic products sector (6 initiations).  Of the 20 reported initiations relating to the base metals sector, 6 were reported by India, 3 by Indonesia, two each by Colombia, the European Union, Thailand and the United States, and one each by Argentina, Israel and Korea.

Mode of Service of Notice/Order as per Section 37C of the Central Excise Act – Courier not Legal?

THE Chief Commissioner of Central Excise, Kolkata Zone made a reference to the Board on 7.10.2010, bringing to its notice the decision of the CESTAT in Nirmal Products vs. Commissioner of CX, Jaipur - 2010-TIOL-1573-CESTAT-DEL. Issuing strictures against the Department, the Hon'ble CESTAT held that the Public authorities can not go beyond modality prescribed by the law as in this case serving of the Order-in-Original was against the expressed provision and so authority conferred upon, in their opinion, was not exercised in accordance with law. The Chief Commissioner suggested to the Board, “Serving any notice/order expeditiously, speed post / courier scores over registered post, which takes more time. Hence, inclusion of the word 'Speed Post' or through 'Courier' (in the event any practical/ unforeseen difficulty is experienced), in the provision of Section 37 C of the Central Excise Act, 1944 may be considered.“

Board has examined the issue and informed the Chief Commissioner:-

++ So far as the proposal for inclusion of Speed Post in Section 37 C is concerned, in terms of section 28 of the Indian Post Office Act, 1898, any postal article that is registered at the post office from which it is posted and the receipt issued in respect of the article so registered in the post office, is to treated as registered post. In the case of the Speed Post the article is registered with the post office from where it is posted on the payment of required fees and the receipt also issued is a form of registered post under the Indian Post Office Act, 1898. Only difference between normal registered post and speed post being the time of delivery taken. Otherwise procedurally speed post appears akin to the registered post and should be covered by the term "registered post" used in the Central Excise Act. However, you may obtain a suitable clarification from the local postal authorities as to whether a speed post is a registered post under the Indian Post Office Act and revert to the Board, if necessary.

++ As regards the proposal to include service through courier in Section 37C in view of the decision of CESTAT in the case of NIRMAL PRODUCTS Vs Commissioner of C. Ex. Jaipur , it is viewed that courier agencies are the private agencies and are not operating under any of the Central Act, Rules or Regulations in respect of the Inland transportations. The service of the documents through courier is also not covered under the General Clauses Act, 1897. Hence, it may not be feasible to include the term "courier" in Section 37 C of the Central Excise Act, till the time relevant amendments are also made in the General Clauses Act, 1897 and Indian Post Office Act, 1898.

++ However, from a perusal of the aforesaid Tribunal order referred by you, it appears that the issue before Tribunal was whether service through courier can be considered as service through registered post. The Tribunal appears to have given its findings on this issue alone. But in terms of Section 37(1) (a) of the Central Excise Act, service can also be done "by tendering" the document. The tendering can be a personal tendering or through and employee or through an agent. Prima facie, a courier can be construed as an "agent". However, this is a legal issue to be explored by the respondent i.e. the Commissioner of C.EX. Jaipur in respect of this individual case.

In DDT 1111 – 15.05.2009, we had mentioned :-

Sending it by courier does not figure in the list at all. Sending a notice by courier is not a mode recognised by law and so a notice served by courier is deemed to have been not served at all.

But why is the Department sending notices by courier? Is it free for them? The Postal Department runs a fairly efficient Speed Post System. Then why should the Government depend on private couriers?

Board's Letter F. No.4/2/2010-CX.4: Dated: November 2, 2010

Jurisprudentiol – Wednesday's cases

Income Tax

Sec 260A - Appeal to High Court from ITAT - It is manifest that an appeal to High Court from a decision of Tribunal lies only when a substantial question of law is involved: Supreme Court

WHAT is "substantial question of law"?  Though not defined in the Act, it has acquired a definite connotation through various judicial pronouncements.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

Central Excise

Omission of Rule 12B of the CER, 2002 – as application for surrender of registration as manufacturer was not accepted by the department it would mean that applicant was still deemed to be a manufacturer after 9.7.2004 and they retain their right to CENVAT credit –  Prima facie  case – Pre-deposit waived and stay granted: CESTAT

THE applicant was working as a 'deemed manufacturer' under Rule 12B of the Central Excise Rules prior to 9.7.2004. This Rule was omitted on 9.7.2004 and no new provision was made for enabling dealers to work as deemed manufacturers with a right to avail CENVAT credit. However, the applicant continued to work as a processor of fabrics from 9.7.2004 and cleared processed fabrics on payment of duty up to September, 2005 by utilizing CENVAT credit taken on inputs. These payments of duty were made on the value addition and by way of debits in PLA and CENVAT accounts. They were also filing returns periodically, which were being accepted by the department.

Customs

Unloading of imported goods at an unapproved place - Unloading done under supervision of Customs -  ignorance of notification on part of Customs officers cannot be condoned if importers and the custodian are to be punished : CESTAT

THIS is a classic case where the Department sought to punish the importer for the ignorance of the Customs Officers. Customs officers approved the documents and supervised the unloading of goods and later the Commissioner imposed hefty fines and penalties, as the unloading was not in an approved area!

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice DAY.

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