2023 (10) TMI 1125 - AT - Customs

Live consignment of 31 coils liable for anti-dumping duty but past consignment demands set aside without evidence

M/s. Vivek Metals and Shri Chandra Mohan Sarda Versus Commissioner of Customs, Bengaluru

CESTAT Bangalore held that the live consignment of 31 coils was mill-edged and liable for anti-dumping duty based on physical examination reports. ... Levy of Anti-dumping duty - imported goods (live consignment) cleared by the appellant are mill edged or slit edged - goods assessed and cleared out of charge can be reopened by issuance of a notice and duty be demanded or not - the earlier consignments which are not available for examination can also be said to be mill edged coils which attracted antidumping duty or not - Confiscation - redemption fine - penalty. HELD THAT:- The live consignment consisting of 31 coils was Mill edge and the allegation by the appellant that only one or two core coils have been inspected proved baseless in as much as the above report clearly shows that all coils were inspected and the report was submitted based on physical examination of the same. These goods are also tested by Shri R. Sreedhar, Chartered Engineer and his certificate where it was held that Based on these reports the goods are Mill edge and liable to payment of anti-dumping duty is beyond doubt therefore the demand for 31 coils is upheld. Whether the Department was right in reopening the assessments for the past imports based on their investigations? - HELD THAT:- The Revenue can reopen the assessments after out of charge being given if investigations proved deliberate attempt to evade duty based on the incriminating documents if unearthed by the Revenue. The law laid down by the Hon’ble Court and maintained by the apex court in the case of VENUS ENTERPRISES VERSUS COMMISSIONER [2007 (1) TMI 564 - SC ORDER] relied by the learned Authorised Representative clearly allows the Revenue to reopen the assessments if on investigation and evidences surface subsequently to prove misdeclaration or undervaluation of already assessed and cleared goods. Whether these reports can be extrapolated to the consignments already cleared and assessed to duty by the customs authorities? - HELD THAT:- The 13 consignments which were imported earlier were from the same supplier is not in dispute and the price quoted in the earlier consignments when compared to the present consignments are more or less the same. It is also not under dispute that the slit edge coils are more expensive when compared to the Mill edge coils because the Mill edge coils are trimmed and slit to size to arrive at a uniform width and contours - Appellants were aware of the fact that anti-dumping duty is to be paid if it is less than 1250 mm and the reply given by the appellant also suggest that they can buy coils of 1255 mm to avoid antidumping duty. This mail clearly suggests that the appellant was aware of the fact that if the coil was of 1260 mm they had to pay anti-dumping duty which is not under dispute. In the present case, investigations have only proved that the appellant was aware of the fact that anti-dumping was leviable on mill edged coils and he had imported some of the consignments from other suppliers with the specifications regarding mill edged or slit edged. However, no incriminating documents were unearthed to prove the consignments cleared earlier were mill edged coils - Without any such evidences based on the examination report of live consignment, one cannot extrapolate the same to the past consignments. For all the past consignments is set aside and therefore, the order to the extent of confiscation and penalty also stands set aside. We uphold that the live consignment of 31 coils is mill edged and anti-dumping duty is liable to be paid on the same. The matter is remanded to the original authority to re-determine the demand only for the 31 coils for which the reports suggest they are mill edged coils. The appeals are disposed of by way of remand. Issues Involved:1. Whether the imported goods (live consignment) cleared by the appellant are mill edged or slit edged and whether they are liable to antidumping duty.2. Whether the goods assessed and cleared out of charge can be reopened by issuance of a notice and duty be demanded.3. Whether the earlier consignments which are not available for examination can also be said to be mill edged coils which attracted antidumping duty.4. When goods are not available for confiscation, whether they can be confiscated and redemption fine and penalty can be imposed on them.Summary:1. Whether the imported goods (live consignment) cleared by the appellant are mill edged or slit edged and whether they are liable to antidumping duty:The Tribunal examined the SGS report and the Chartered Engineer's certificate, both of which confirmed that the live consignment of 31 coils was mill edged. Consequently, the goods were deemed liable for anti-dumping duty. The appellant's argument that only a few coils were inspected was dismissed as the reports indicated that all coils were inspected.2. Whether the goods assessed and cleared out of charge can be reopened by issuance of a notice and duty be demanded:The Tribunal agreed with the Revenue's position that assessments could be reopened if subsequent investigations revealed deliberate attempts to evade duty. The precedent set by the case of Venus Enterprises supported this view, allowing the Revenue to demand duty if misdeclaration or undervaluation was proven through investigation.3. Whether the earlier consignments which are not available for examination can also be said to be mill edged coils which attracted antidumping duty:The Tribunal held that the test reports of the live consignment could not be mechanically extrapolated to past consignments. Despite the appellant's knowledge of anti-dumping duty and some incriminating documents, there was insufficient evidence to prove that the earlier consignments were mill edged. The Tribunal cited decisions in cases like R.R. Enterprises and Marks Marketing P. Ltd., emphasizing that past consignments could not be assumed to have the same characteristics as the live consignment without concrete evidence.4. When goods are not available for confiscation, whether they can be confiscated and redemption fine and penalty can be imposed on them:The Tribunal set aside the demand, confiscation, and penalties related to the past consignments due to lack of evidence. However, it upheld the anti-dumping duty on the live consignment of 31 coils and remanded the matter to the original authority to re-determine the demand for these coils. The issues of redemption fine and penalties on the live consignment were kept open for further consideration.Conclusion:The appeals were disposed of by remand, with instructions for the original authority to re-determine the demand for the live consignment and provide a reasonable opportunity for hearing to the appellant.