Cus - ADD on PVC imported from China - It is well settled that notification always has prospective effect unless contrary intention is evident from language thereof -Notf.38/2008-Cus does not contain even hint or an indication that it was intended to have retrospective effect - Appeal rejected: CESTAT by Majority
By TIOL News Service
NEW DELHI, JAN 21, 2016: BY 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. The competing entries of the original notification read as under:
|
S. No.
|
Sub Heading
|
Description of the goods
|
Specification
|
COD
|
DOE
|
Producer
|
Exporter
|
Duty amount
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Unit of Measurement
|
Currency
|
| 1 |
2 |
3 |
4 |
5 |
6 |
7 |
8 |
9 |
10 |
11 |
|
19
|
390421
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Photopolymer of chloride Monomer (PVC) Suspension Grade
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As per annexure
|
Republic of China
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any
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Tianjin Dagu Chemical Co. Ltd.
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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
|
The 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 by an amending notification 38/2008-Cus. 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.
Revenue contention is that in view of addition of M/s. Tianjin Dagu Chemicals Co. Ltd in Column 8 of Sl.No.19 by the amending Notification, 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.
The appellant importer contends otherwise. Inasmuch as the amendment should be considered retrospective and, therefore, ADD cannot be levied under sl.no. 23 for the period 23.01.2008 till the date of amendment, the appellant emphasised.
When the matter came in appeal before the CESTAT, there was a difference in opinion amongst the Members of the Division Bench.
Whereas the Member (J) agreed with the submission of the importer, the Member (T) held otherwise.
And, therefore, the matter was referred for a Majority decision.
We reported this order as - 2015-TIOL-804-CESTAT-DEL.
The Third Member on reference has passed an order recently.
The Member (Technical) after extracting the entries in the original notification and the amending notification observed and held thus -
+ At the very outset, it is pertinent to mention that anti-dumping duty is charged in terms of the customs notification issued in that regard and not in terms of the "final findings" of Directorate General of Anti-Dumping and Allied Duties (DGAD). Indeed the "final findings" of DGAD does not levy any anti-dumping duty. This is well settled and is not disputed by the appellant or Revenue.
+ It is evident that notification No. 38/2008-Cus. Dated 24.3.2008 quoted above amended Notification No. 11/2008- Cus dated 23.01.2008. Notification no.24.03.2008 does not have even a hint or shade of retrospective applicability.
+ The contention of the ld. Advocate that Notification No. 38/2008-Cus. was issued in pursuance of the corrigendum dated 14th February 2008 issued by DGAD has been considered. The Customs notification no.38/2008-Cus dated 24.03.2008 makes no reference to DGAD notification no.14.02.2008; indeed it does not give any such indication that it is issued in pursuance of the said corrigendum dated 14th Feb. 2008 and even if it was so, the applicability of the Customs notification will have to be interpreted from the wording used therein.
+ As stated earlier, Notification No. 38/2008-Cus. is a simple amending notification by virtue of which amendment was made to Notification No. 11/2008-Cus. It is well settled that a notification always has prospective effect unless a contrary intention is evident from the language thereof. The language of Notification No. 38/2008-Cus. does not contain even a hint or an indication that it was intended to have retrospective effect.
+ Notification No. 38/2008-Cust dated 24.3.2008 is an amending notification which amended Notification No. 11/2008-Cus; it (i.e. Notification No. 38/2008-Cus.) is not a corrigendum to Notification No. 11/2008-Cus. dated 23.01.2008 either by express mention to that effect or even by implication.
In fine, the third Member on reference concurred with the findings of the Member (T).
And, therefore, the Majority decision is that the appeal filed by the importer was rejected.
(See 2016-TIOL-229-CESTAT-DEL)
