Anti-dumping duty on PVC imported from China under Notification No 11/2008 - Whether amending Notification No 38/2008 is retrospective - Matter referred to President in view of difference in opinion between Members: CESTAT
By TIOL News Service
NEW DELHI, MAY 07, 2015: NOTIFICATION No 11/2008 Cus dated 23.01.2008, Anti-dumping duty was imposed on PVC (suspension grade) imported from China, Indonesia, Japan, Malaysia, Thailand, Korea and the US. The dispute in the present case is whether the imported goods would fall under Sl No 19 or Sl No 23 of the Notification. Both the entries read as under:
|
S. No.
|
Sub Heading
|
Description of the goods
|
Specification
|
COD
|
DOE
|
Producer
|
Exporter
|
Duty amount
|
Unit of Measurement
|
Currency
|
| 19 |
390421 |
Photopolymer of chloride Monomer (PVC) Suspension Grade |
As per annexure |
Republic of china |
any |
Tianjin Dagu Chemical Co. Ltd. |
Tianjin Bohai Chemical Industries Import and Export Corporation |
1040 |
MT |
Rupees |
| 23 |
390421 |
do |
do |
Republic of china |
any |
Any other combination of producer-exporter |
2702 |
MT |
Rupees |
It is the case of the appellant that original Notification dated 23.1.2008 imposed duty on the goods exported by Tianjin Bohai Chemical Industries Import and Export Corporation of China appearing in column (8) of Sl. No. 19 of that Notification. On 24.3.2008 name of the manufacturer i.e. M/s. Tianjin Dagu Chemicals Co. Ltd. was added in column (8) Sl. No. 19 of the Notification dated 23.1.2008 by an amending notification dated 24.3.2008. Accordingly export by the producer viz. M/s.Tianjin Dagu Chemicals Co. Ltd in such cases was also leviable to anti-dumping duty in terms of Sl.No.19 of the Notification No.11/2008-Cus dated 23.1.2008.
Per contra, Revenue submits that in view of addition of name of manufacturer in Column 8 of sl.No.19 of the Notification vide amending Notification No 38/2008 Cus dated dated 24.3.2008, the exports by manufacturer M/s. Tianjin Dagu Chemicals Co. Ltd shall be treated as export falling under S.No.19 of Notification dated 23.1.2008 only from 24.03.2008, but not prior to that, resulting in higher ADD under Sl No 23 for the period under dispute.
After hearing both sides, Member (J) held:
As per bill of entry, export of subject goods was made from China by the producer and the goods were manufactured in China. Amending Notification No.38/Cus-2008 dated 24.3.2008 brought out name of the manufacturer to column No.8 of the original Notification dated 23.1.2008 implying that if the producer also exports subject goods, that shall be liable to anti-dumping duty under serial No. 19. The curative measure prescribed by the notification is to be construed as effective from 23.1.2008 so as to ensure no escapement of duty if producer also exports subject goods manufactured in China. The amending notification is to be read in the manner that advances the object of extending scope of levy to gather Revenue without escapement of a manufacturer from levy under Sl. No.19 of the Notification, made to protect interest of Revenue. Amending notification had its intention making clear that apart from the exporter specified in column 8 of S.No.19, if the producer named under that serial number also exports subject goods, such goods shall be liable to anti-dumping duty. It is well settled law that generality excludes specific; therefore, impugned imports fall under the purview of Sl.No.19 of the Notification dated 23.1.2008 since country of origin producer and exporter belong to China and levy of anti-dumping duty was goods specific and country specific. This being most specific case than the generalization prescribed by sl. No.23 of the Notification, case of the appellant is not possible to be excluded from Sl .No. 19 from levy of anti-dumping duty on imports; Accordingly amount of anti-dumping duty prescribed in column No.9 of the Notification against Sl.No.19 thereof shall apply to the impugned import.
However, the Member (T) held contrary. According to the Member(T),
The amending Notification does not specifically provide for retrospective inclusion of the name of Chinese firm at Sr. No. 19 from the date of imposition of anti-dumping duty. In the absence of any indication that the supplier's name was included at Column 8 of entry at Sr. No.19 effective from 23.01.2008, the import made by the Appellant was covered by Sr. No.23 till the amending Notification was issued on 24.03.2008. Amending Notification is not a corrigendum to the initial Notification and there is nothing in it to show that amendment to entry at Sr. No.19 was to be given retrospective effect. Impugned goods in the instant case are liable to anti-dumping duty in terms of entry at Sr. No. 23. Classification of imported product will be rightly under Sr.No.23 of notification dated 23.1.2008; and after amendment, the classification will be under Sr.No.19 of notification dt.24.3.2008.
In view of the difference of opinion, the matter is placed before the President for appropriate order.
(See 2015-TIOL-804-CESTAT-DEL)
