2004 (8) TMI 250 - AT - Customs

Tribunal Upholds Anti-Dumping Duty Pre-Exemption, Previous Duty Valid

VETCARE ALLTECH PVT. LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI

The tribunal upheld the imposition of anti-dumping duty on imports made before the exemption notification, ruling that the duty collected under the ... Anti-Dumping duty - EXIM - Appeal to Tribunal Issues Involved:1. Levy of anti-dumping duty on imports against advance licence under the EXIM Policy.2. Interpretation of relevant notifications and legal provisions.3. Applicability of anti-dumping duty on imports made before the issuance of exemption notification.4. Harmonious construction of statutory notifications.5. Validity and effect of rescinded notifications on previously imposed duties.Issue-wise Detailed Analysis:1. Levy of Anti-Dumping Duty on Imports Against Advance Licence:The appellants argued that under Para 47 of the EXIM Policy (1992-97), all raw materials, components, and consumables imported against an advance licence were permitted to be imported duty-free. They contended that anti-dumping duty should not be levied on goods imported against such a licence. The tribunal examined the relevant notifications and provisions, concluding that the Central Government was empowered under Section 9A of the Customs Tariff Act, 1975, to impose anti-dumping duty, which is distinct from the basic customs duty exempted under the EXIM Policy.2. Interpretation of Relevant Notifications and Legal Provisions:The appellants referred to Notification No. 80/96-Cus., dated 16-10-1996, which imposed anti-dumping duty on 8 Hydroxy Quinoline (8 HQ) imported from China. They argued that subsequent Notification No. 27/97-Cus., dated 1-4-1997, confirmed the duty based on final findings but was later rescinded by Notification No. 5/2001-Cus., dated 22-1-2001. The tribunal observed that the rescission of Notification No. 27/97 did not affect the validity of duties imposed during its operative period.3. Applicability of Anti-Dumping Duty on Imports Made Before Issuance of Exemption Notification:The tribunal noted that the imports in question were made between 31-12-1996 and 25-2-1997, before the exemption Notification No. 41/97-Cus., dated 30-4-1997, came into effect. Therefore, the imports were liable for anti-dumping duty as per Notification No. 27/97-Cus. The tribunal upheld the lower appellate authority's decision to grant exemption for imports made under Bill of Entry No. 10942, dated 30-4-1997, as the goods were cleared in May 1997.4. Harmonious Construction of Statutory Notifications:The appellants cited various judgments advocating for harmonious construction when there are inconsistencies between statutory notifications. The tribunal, however, found that the cited cases did not apply to the present situation. The tribunal held that the Central Government's mandate to impose anti-dumping duty under Section 9A of the Customs Tariff Act was clear and distinct from the general exemptions provided under the EXIM Policy.5. Validity and Effect of Rescinded Notifications on Previously Imposed Duties:The tribunal referred to the Larger Bench decision in Caprihans India Ltd. v. CC, Bombay, which clarified that anti-dumping duty levied under Section 9A of the Customs Tariff Act is not considered duty realized under the Customs Act, 1962. The tribunal concluded that the rescission of Notification No. 27/97-Cus. did not invalidate the duties imposed during its effective period. The tribunal affirmed the lower appellate authority's order, dismissing the appeals and upholding the imposition of anti-dumping duty on the imports made before 30-4-1997.Separate Judgment by Member (Judicial):The Member (Judicial) disagreed with the majority view, arguing that once Notification No. 27/97-Cus. was rescinded by Notification No. 5/2001-Cus., the duty collected under the former should not survive. The Member (Judicial) held that the appeals should be allowed, and the impugned order should be set aside.Majority Order:The third Member (Technical) disagreed with the Member (Judicial), stating that the withdrawal of anti-dumping duty through Notification No. 5/2001-Cus. did not affect the levy and collection of duty under Notification No. 27/97-Cus. during its validity. The majority upheld the lower appellate authority's order, dismissing the appeals and confirming the imposition of anti-dumping duty on the imports made before the exemption notification.Conclusion:The tribunal concluded that the imposition of anti-dumping duty on the imports made by the appellants before the issuance of the exemption notification was valid and upheld the lower appellate authority's order. The appeals were dismissed accordingly.