2025 (12) TMI 957 - AAR - Customs

Anti-dumping duty on MOOWR-warehoused imports cleared for home use after notification; s.15(1)(b) ex-bond date, so applies

Anti-dumping duty (ADD) applicability to goods imported and warehoused under the MOOWR scheme, but cleared for home consumption after issuance of an ADD ... Correct legal timing for determination of the rate of customs duty and anti-dumping duty on warehoused goods under the MOOWR scheme - Applicability of N/N. 16/2024-Customs (ADD), imposing Anti-Dumping Duty on imports of aluminium frames for solar panels/modules falling under Tariff Heading 7610 90 10 with effect from 27 September 2024 to the manufactured goods proposed to be cleared for home consumption from its MOOWR unit, when the underlying aluminium frames were imported without payment of duty prior to the effective date of the said notification. HELD THAT:- By express legislative mandate, the entire machinery of the Customs Act, including Section 15(1) relating to the date for determination of rate of duty, applies to anti- dumping duty as well. In other words, for warehoused goods cleared under Section 68, the date for determining the rate of anti-dumping duty is also the date of presentation of the Bill of Entry for home consumption, exactly in the same manner as for basic customs duty - Once this is appreciated, the applicant's argument that ADD cannot apply because it was not in existence at the time of warehousing import is directly contrary to Section 15(1)(b) of the Customs Act, 1962 read with Section 9A(8) of the Customs Tariff Act, 1975, which treat anti-dumping duty on par with other customs duties for the purpose of rate-determination date. In the matter of M/s Kesoram Rayon v/s Collector of Customs [1996 (8) TMI 109 - SUPREME COURT], the Hon'ble Supreme Court clarified that where goods remain in the warehouse beyond the permitted period and are deemed to have been improperly removed, Section 72 read with the date immediately following expiry of the warehousing period becomes relevant. The Supreme Court simultaneously affirmed that Section 15(1)(b) applies to goods properly cleared within the permitted period. In both situations, duty is determined with reference to a date that may be significantly later than the original warehousing date, and there is no concept of freezing the duty structure as on the date of warehousing. The SEZ Act contains its own self-contained charging and exemption provisions, including a specific formula that refers to duties 'as leviable on such goods when imported'. MOOWR scheme, however, is based entirely on the Customs Act warehousing provisions. There is no provision under MOOWR scheme similar to Section 30 of the SEZ Act that displaces or modifies Section 15(1)(b). Notification No. 16/2024-Customs (ADD) dated 27.09.2024 is applicable to aluminium frames for solar panels/modules falling under CTH 7610 90 10 imported by M/s Swelect HHV Solar Photovoltaics Private Limited under warehousing Bills of Entry during the period December 2023 to September 2024 and warehoused under the MOOWR scheme, if and when such goods are cleared for home consumption on or after 27.09.2024 - At the time of clearance of such warehoused goods for home consumption under Section 68, the rate of duty applicable shall be the rate in force on the date of presentation of the Bill of Entry for home consumption, in accordance with Section 15(1)(b) of the Customs Act, 1962 - The applicant's plea that only the duties that were deferred at the time of initial import (BCD, SWS, IGST) are payable at ex-bond and that anti-dumping duty imposed later cannot be recovered, is contrary to the statutory scheme of Sections 15, 68 and 2(25) of the Customs Act read with Section 9A(8) of the Customs Tariff Act and the jurisprudence on warehousing is non-maintainable and therefore rejected. Issues: (i) Whether Anti-Dumping Duty (Notification No. 16/2024-Customs (ADD) dated 27.09.2024) imposed after the date of filing into-bond warehousing bills but in force on the date of filing the ex-bond bill of entry is leviable at the time of clearance for home consumption of goods warehoused under the MOOWR scheme.Analysis: Section 15(1)(b) of the Customs Act, 1962 fixes the date for determination of the rate of duty for goods cleared from a warehouse under Section 68 as the date of presentation of the bill of entry for home consumption. Section 2(25) defines warehoused goods as 'imported goods' until cleared for home consumption. Section 9A(8) of the Customs Tariff Act, 1975 applies the machinery of the Customs Act, including the date-of-determination rule, to anti-dumping duty. Judicial authorities on warehousing confirm that the tentative into-bond assessment does not freeze the duty structure and that intervening lawful changes in duty between warehousing and ex-bond clearance govern leviability. Administrative FAQs and circulars describing MOOWR as a duty-deferment scheme do not override the statutory mandate of Section 15(1)(b) and the deeming operation of Section 9A(8). The MOOWR scheme defers payment but does not convert deferment into an exemption that prevents subsequent prospective duties from applying at ex-bond clearance.Conclusion: Notification No. 16/2024-Customs (ADD) dated 27.09.2024 is applicable to aluminium frames (CTH 7610 90 10) imported and warehoused under the MOOWR scheme between December 2023 and September 2024 if such goods are cleared for home consumption on or after 27.09.2024; the rate of duty at ex-bond clearance shall be the rate in force on the date of presentation of the bill of entry for home consumption, and this includes anti-dumping duty as well as BCD, SWS and IGST.