2014 (12) TMI 193

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.... 2 436430 dated 29.10.2002 Energy Saving Lamp (CFL) 7W 853931 - 853990 3 438303 dated 07.11.2002 Single U tube CFL 9W 853939 - 853990 2. Pursuant to the Notification No.128/2001-Customs dated 21.12.2001, the imported goods were assessed and the appellant was allowed to clear the goods provisionally after execution of Provisional Duty Bonds dated 13.11.2002, 5.11.2002 and 21.11.2002 under Section 18(1) of the Customs Act, 1962. After investigation and conclusion of the enquiry, the Government of India issued the Notification No.138/2002-Customs dated 10.12.2002 based on the final findings dated 14.11.2002 of the designated authority. Under the Customs Notification No.138/2002 dated 10.12.2002, the imported Compact Fluorescent Lamps (CFL) with/without choke originating in or exported from People's Republic of China and Hong Kong are liable to payment of anti-dumping duty. It is to be mentioned herein that the Notification No.138/2002 dated 10.12.2002 relates to the goods falling under sub-heading 8539.31 of the First Schedule to the Customs Tariff Act, 1975, which is in continuation of the Notification No.128/2001-Customs dated 21.12.2001. The relev....

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.... injury from exports of subject goods from People's Republic of China and Hong Kong; (c) the injury has been caused cumulatively by the dumped imports from People's Republic of China and Hong Kong; (d) in case of exports of CFL with choke by M/s Philips & Yaming, People's Republic of China, casual link could not be established, as the landed value of such exports was more than the non-injurious price, and has proposed to impose anti-dumping duty, on all imports of CFL, except the exports of CFL, both with and without choke, by M/s Philips & Yaming, People's Republic of China, originating in, or exported from, People's Republic of China and Hong Kong: Now, therefore, in exercise of the powers conferred by sub-section (1) and (5) of Section 9A of the said Customs Tariff Act, read with rule 18 and rule 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the above findings of the designated authority, hereby imposes on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the said Customs Tari....

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....ported goods. Aggrieved by the order of the Commissioner of Customs (Appeals), the appellant preferred an appeal to the Tribunal along with an miscellaneous application for waiver of the pre-deposit duty. The said miscellaneous application was considered by the Tribunal and in its Miscellaneous Order No.42008 of 2013 dated 24.7.2013 held as follows:- ''3. On the other hand, the Ld. AR submits that similar goods imported during the relevant period by other importers, wherein the Tribunal directed to predeposit the entire amount of duty in the case of Picasso Overseas v. CC Chennai 2009 (243) ELT 359 (Tri.Chen.). He further submits that the Hon'ble Madras High Court modified the Tribunal's Stay Order in so far as it directed the applicant to predeposit about 30% as reported in Picasso Overseas v. CESTAT, Chennai 2012 (275) ELT 185 (Mad.). He also relies upon the decision of the Kerala High Court in the case of CC v. Akash Trading Co.-2010 (253) ELT 734 (Ker.). It is submitted that the applicant themselves sought provisional assessment by executing a bond under Section 18 of the Act. It is also contended that the goods as mentioned in the case of Picasso Overseas (s....

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....so Overseas. The finding of the adjudicating authority is that applicant executed provisional bond and had not submitted catalogue/specifications and, in this context, the item was treated as CFL without choke. We find from final Notification No.138/2002-Cus (supra), the table appended to the notification indicates two types of rates of duty on CFL with choke and without choke. 5. On a plain reading of the notification, it appears that anti-dumping duty could be imposed on CFL without choke and with choke. The Board's clarification in respect of items duty would be levied on two types of CFL such as complete, ready to use wherein the choke is integrated within the lamp and choke is external. It would be decided after examining the entire catalogue and other facts at the time of appeal hearing. Considering the overall facts and circumstances of the case, and the decision of Picasso Overseas, the Tribunal directed them to make a predeposit of Rs. 2.50 crores. The issue of classification is a factual aspect which cannot be decided at the stage of hearing of application for modification of stay order. In view of that, we do not find any merit in the application. Accordingly, app....

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....in appeal. For the present, we consider this factor viz., that the bill of entry No.436430 covers the goods in terms of the Customs Notification No.138/2002 dated 10.12.2002 and for that import, anti-dumping duty is leviable. We also take note of the plea of financial hardship, for the reason that the import of the goods in the year 2002 is being adjudicated and further appealed in the year 2014. At this juncture, it is apposite to refer to a decision of the Supreme Court in Benara Valves Ltd. v. CCE, (2006) 13 SCC 347, wherein it has been held as under: "8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to stand on, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Co....