2020 (10) TMI 287 - AT - Customs

Supreme Court: Anti-Dumping Duty ruling on Stainless Steel CR Coils width

M/s Stainox Alloys Pvt. Ltd. and Shri Ketan Jain Versus Commissioner of Customs, NS-II

The Supreme Court ruled in favor of the Revenue regarding the applicability of Anti Dumping Duty on imported Stainless Steel CR Coils with a width less ... Levy of ADD - imported stainless steel CR Coils having width less than 1280 mm - It is alleged that the goods were stuffed in seven containers, and in three containers weighing around 54.294 MTs Stainless Steel CR Coils having width less than 1280 mm , hence liable to Anti Dumping duty amounting to ₹ 49,14,756/- - N/N. 14 of 2010 dated 20.02.2010 read with N/N. 86/2011 dated 6.9.2011 - Confiscation - Penalty - HELD THAT:- The issue is no more res integra and settled by the judgment of Hon'ble Supreme Court in favor of Revenue in the case of COMMISSIONER OF CUSTOMS (EXPORT) VERSUS M/S. MASCOT INTERNATIONAL [2017 (7) TMI 276 - SUPREME COURT] setting aside the judgment of the Tribunal in this regard. Thus, the Stainless Steel CR Coils of 54.298 MT having width less than 1280 mm are liable to Anti Dumping duty of ₹ 49,14,756/- and the confirmation of the duty by the authorities below does not suffer from any infirmity. This is also not disputed by the Appellant during the course of hearing. Confiscation - Redemption fine - HELD THAT:- The adjudicating authority while confirming the demand of Anti Dumping duty directed confiscation of the goods observing that the goods are liable to anti dumping duty and there has been mis-declaration/non-declaration of goods in the respective Bills of Entry. The confiscation of the goods was directed under Section 111(d) and 111(o) of the Customs Act, 1962 and allowed redemption of the same on payment of fine of ₹ 4.00 lakhs. There is merit in the contention of the learned AR for the Revenue inasmuch as when the goods were imported, the appellant did not appropriately declare the width of the stainless steel CR coils in the Bills of Entry only in respect of 54.294MTs when the width of other coils having width more than 1280mm declared, resulting into nonpayment of Anti Dumping duty. After initiation of investigation, the Anti Dumping duty of ₹ 49,14,756/- has been deposited by them. Subsequently, the goods were provisionally released on execution bond and cash security. On their application, the Commissioner of Customs allowed re-export of the goods in May, 2014 and the goods were subsequently re-exported in September, 2014. Penalty on Shri Ketan R Jain - HELD THAT:- The Department could not bring out any evidence against personal involvement of Shri Ketan R Jain indicating that he has involved actively in non-payment of anti dumping duty by mis-declaring the width of the coil. On the contrary, he has signed the relevant import documents filed with Department in normal course. Accordingly, imposition of penalty on him is unwarranted and the same is accordingly set aside. There are no merit in the contention of the appellant in as much as the amount of Anti Dumping duty was paid during the course of investigation in February, 2014, which later resulted into issuance of show-cause notice in August, 2014 after completion of the investigation. The said show-cause notice was adjudicated by the Assistant Commissioner in 2017 and the appeal against the said order was finally decided by the learned Commissioner (Appeals) by order dated 19.09.2018.Consequent to the said Order the refund of anti dumping paid during investigation became due to them. Consequently, on their filing of refund claim on 26.11.2018, the Assistant Commissioner after scrutinizing the refund claim from all aspects including unjust enrichment etc., sanctioned the refund to the Appellant. Appeal allowed in part. Issues Involved:1. Applicability of Anti Dumping Duty on imported Stainless Steel CR Coils having width less than 1280 mm.2. Confiscation of the goods and imposition of penalty.3. Imposition of penalty on the Director of the Appellant.4. Refund of Anti Dumping Duty paid upon re-export of the goods.Detailed Analysis:1. Applicability of Anti Dumping Duty:The issue of Anti Dumping Duty on the imported Stainless Steel CR Coils having width less than 1280 mm is settled by the Supreme Court in favor of the Revenue in the case of Commissioner of Customs (Export), Nhava Sheva Vs. Mascot International – 2017 (352) ELT 3 (SC). Consequently, the Stainless Steel CR Coils of 54.298 MT having width less than 1280 mm are liable to Anti Dumping Duty of Rs. 49,14,756/-. This point was not disputed by the Appellant during the hearing.2. Confiscation of Goods and Imposition of Penalty:The appellant argued that there was no mis-declaration of the goods in the Bill of Entry since the width of the coils was mentioned in the accompanying commercial invoice and packing list. However, the adjudicating authority confirmed the demand of Anti Dumping Duty and directed confiscation under Section 111(d) and 111(o) of the Customs Act, 1962, allowing redemption of the same on payment of a fine of Rs. 4.00 lakhs. The Commissioner (Appeals) observed that the goods are liable for confiscation under Sections 111(m) and 111(o) of the Customs Act, 1962, but not under Section 111(d).The Tribunal found that the confiscation under Section 111(m) by the Commissioner (Appeals) was beyond the scope of the adjudication order and not sustainable. The Notification 14/2010-Cus read with Notification No.86/2011-Cus is directed for levy of Anti-dumping duty and not a post-import conditional exemption Notification. Consequently, the confiscation under Section 111(o) cannot be sustained, and thus, the confiscation of goods and consequent imposition of penalty were set aside.3. Imposition of Penalty on the Director:The Tribunal found no evidence of the Director’s personal involvement in the mis-declaration of the width of the coils. The Director signed the relevant import documents in the normal course. Therefore, the imposition of a penalty on him was deemed unwarranted and was set aside.4. Refund of Anti Dumping Duty:The appellant re-exported the goods and filed a refund claim for the Anti Dumping Duty paid. The adjudicating authority rejected the claim, stating it should be considered under Section 26A and not under Section 27 of the Customs Act, 1962. The Commissioner (Appeals) set aside this finding and directed the appellant to file a fresh application, which was subsequently processed, and the refund was sanctioned.The Tribunal found no merit in the appellant's contention that they should not have been required to file a fresh refund claim. The refund became due only after the adjudication of the show-cause notice, and the subsequent filing of the refund claim on 26.11.2018 was appropriate. The approach of the Department in scrutinizing and sanctioning the refund was found to be correct.Conclusion:- Appeal No. 89652/2018 filed by the appellant company is partly allowed, setting aside the confiscation and penalty.- Appeal No. 89464/2018 regarding the refund of Anti Dumping Duty is rejected.- Appeal No. 89657/2018 filed by the Director is allowed.Pronounced in court on 11.09.2020.