TaxTMI 
TaxTMI 
2015 (6) TMI 862
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.... 2. The appellants are M/s. Samay Electronics Pvt. Ltd., M/s. Wipro Limited, M/s. Amar Energy Systems, M/s. Shell & Pearl Ceramics Ltd., M/s. Sunora Electronics Industries and their partners/employees. The issue involved in all these appeals is common and it relates to levy of anti dumping duty on Compact Fluorescent Lamps (CFL) imported from China in SKD form and in different consignments and at different ports. The facts involved in each of these cases are discussed below:- (1) Samay Electronics Pvt. Ltd.: During the period from November 2004 to February 2007, M/s. Samay Electronics Pvt. Ltd. (Samay in short) had imported 106 consignments of CFL from China in SKD form without payment of anti dumping duty leviable on CFL vide Customs Notification No. 138/2002-Cus dated 20/12/2002. (a) As part of the investigation, officers of the DRI, Ahmedabad visited the office and factory premises of M/s. Samay on 28/11/2006. During the visit, it was found that M/s. Samay was importing glass tubes with base from China at Kandla port and holders with wire and populated PCBs for CFL at Mumbai. The CFLs were being assembled at their factory by soldering the above goods. All the components p....
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....ce. However, a suffix to the said invoice number was made with suffix M for imports through Mumbai port and suffix K for imports made through Kandla port. However, the numbers and dates of the invoices were one and the same in respect of both the supplies. It was found that the appellant had imported 723560 numbers of CFL from Fuijian Lijia Electrical Appliance Co. Ltd., Fuijian, China and 540600 pieces of CFL from Zhejiang Province Machinery & Equipment Complete CO. Ltd., China and 6685125 pieces of CFL from M/s. International Lighting City Zhongshan Co. Ltd., Guangdong Province, China by mis-declaring these items under import as components of CFL. They had thus evaded anti dumping duty amounting to Rs. 79,40,69,516/-. (d) On completion of the investigation, a show cause notice dated 23/05/2007 was issued seeking to classify the goods under CTH 85393110 as CFL as against the classification done by the appellant at the time of importation under CTH 8539 9010 as parts of CFL, by applying Rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975 and demanding anti-dumping duty along with interest thereon and also proposing confiscation of the goods under Sectio....
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....for CFL of the same type and wattage. Thus all the consignments of identical quantities were imported in the same manner. It, therefore, appeared that kits of CFLs of 11 watts, 15 watts and 20 watts were imported in semi-knocked down condition by mis-declaring the same as parts of CFL. (b) Accordingly, a show cause notice was issued for recovery of anti-dumping duty and in adjudication the adjudicating authority held that all the goods imported under 20 Bills of Entry in SKD condition are classifiable under CTH 8539 3110 attracting anti-dumping duty. The adjudicating authority also imposed penalty of equivalent amount on the importer, M/s. Wipro Limited under Section 114A. The goods covered by all the Bills of Entry were confiscated with an option to redeem the same on payment of fine of Rs. 41 lakhs. A penalty of Rs. 2 lakhs was imposed on Shri Dilip Basole, Vice President (Commercial) of the appellant-firm under Section 112(a) of the Customs Act, 1962. (3) M/s. Sunora Electronics: During September 2005 to December 2006, M/s. Sunora Electronics imported CFL in SKD condition partly by itself in and partly through M/s. Shell & Pearl Ceramics Ltd., Ahmedabad. (a) It was foun....
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....imports, by simple assembling all the components, CFL could be manufactured. (f) After completion of the investigation, a show cause notice dated 16/09/2010 was issued to M/s. Sunora Electronics and M/s. Shell and Pearl seeking to classify 792974 pcs of CFL imported by M/s. Sunora Electronic and M/s. Shell & Pearl Ceramics Ltd. under CTH 85393110 in terms of Rule 2(a) of the General Interpretative Rules and proposing to confiscate the same under Section 111(d) and (m) of the Customs Act and seeking to recover anti-dumping duty of Rs. 9,16,50,373/- from M/s. Sunora Electronic along with interest thereon. The notice also proposed to impose penalty on both M/s. Sunora Electronic and M/s. Shell & Pearl Ceramics Ltd. and also on Shri Jigneshbhai Patel, Partner of M/s. Sunora Electronic and Shri Prafulla Gattani, Director of M/s. Shell & Pearl Ceramic Ltd. (g) In the adjudication order, the proposals in the show cause notices were confirmed and anti-dumping duty of Rs. 9,16,50,373/- together with interest was confirmed on M/s. Sunora Electronics and equivalent amount of penalty was also imposed under Section 114A of the Customs Act. A penalty of Rs. 2= crore was imposed on Shri Jig....
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....nd populated PCBs from the same Chinese exporter through Mumbai/Nhava Sheva ports since November 2004 onwards and the goods were declared as parts and components of CFL and classified under CTH 8539 9010 and cleared the same on payment of appropriate customs duty. These parts and components were brought to appellants factory at Morbi for manufacture of CFL and CENVAT credit of the CVD paid on such parts and components were also availed on the CFL so manufactured. The appellant discharged excise duty liability in terms of Section 4A of the Central Excise Act, 1944. The appellant, for manufacture of CFL, had made an investment of Rs. 35 lakhs on capital goods and had employed about 300 workers. The Director General of Anti-Dumping issued a Notification dated 16/08/2001 initiating anti-dumping investigations concerning imports of CFL originating from China and the product covered was Compact Fluorescent Lamp (CFL) with one or more glass tubes and which have all lighting elements, all electronic components and cap integrated in the lamp foot. It also covered Compact Fluorescent Lamps without choke or ballast. 3.2. On 02/11/2001 the preliminary findings were notified vide Notificatio....
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....ll cease to have effect on the expiry of five years from the date of such imposition and therefore, Notification 138/2002-Cus ceased to have effect after the expiry of five years from 21/12/2001. Therefore, the demand for anti-dumping duty is not sustainable in law. It is also pointed out that the adjudicating authority has dropped the anti-dumping duty demand for imports post 20/12/2006. 3.5. The common law rule is that if an Act expired or was repealed it was regarded, in the absence of provision to the contrary, nothing can survive except as to matters and transactions past and closed. Reliance is placed on Maxwells The Interpretation of Statutes - Twelfth Editionwherein it is stated that: The common law rule was that if an Act expired or was repealed it was regarded, in the absence of the provision to the contrary, as having never existed, except to matters and transactions past and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution began while the Act was still in force. 3.6. Reliance is also placed on the Kolhapur Canesugar Works Ltd. vs. Union of India 2000 (11....
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....ll actions initiated if not concluded before expiry, would terminate. In the present case, since the show cause notice itself has been issued after the expiry of the Notification, its legality cannot be upheld at all and, therefore, the present proceedings confirming anti-dumpy duty after the expiry of the Notifications is null and void and unsustainable. 3.9. The next argument put forth is that as far as the levy of basic Customs duty is concerned, there is no change in the classification sought by the Revenue and the goods imported have been treated as parts. Even for the levy of CVD, the goods have been treated as parts. The present notice seeks to alter the classification only in respect of anti-dumping duty alone, wherein the classification is sought to be changed as complete CFL and this is fatal to the Revenues case. Even if it is assumed that the imported goods are CFL in SKD/CKD condition, the law was amended only in 2008 wherein CFL in CKD/SKD condition were also made liable to anti-dumping duty. Therefore, for the period prior to March 2008, there cannot be any anti-dumping duty on CFL in CKD/SKD condition. Section 9A(1A) of the Customs Tariff Act was brought under th....
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....02-Cus dated 10/12/2002. 3.11. As regards the reliance placed by the Revenue in the case of Commissioner of Customs, Chennai Vs. Plaza Lamps & Tubes 2005 (185) ELT 223, wherein the Tribunal had held that glass tube with plastic lamp base was liable to anti-dumping duty, the said decision was reversed by the Honble Delhi Court in Plaza Lamps & Tubes Ltd. vs. Commissioner of Customs [2007 (209) ELT 182 (Del.)] Similarly, in the case of Delta Electronics vs. CCCE [2012 (283) ELT 68 ], it was held that import of parts of CFL like electric bulbs, populated PCBs, plastic parts, metal caps, etc. will not mean that there is import of CFL in CKD/SKD condition. In Nav Durga Associates vs. Union of India [2013 (287) ELT 19 (Del.)], the honble Delhi High Court held that Rule 2(a) of GIR changes the classification, but it does not alter the nature and description of the imported goods. In the said case, the assessee imported various parts of dry battery cells and the department sought to levy anti dumping duty on such parts by applying Rule 2(a) holding that there has been import of dry battery cells in CKD/SKD condition. The honble High Court held that since Notification did not cover parts....
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....ule 2(a) of GRI held that the item under import was CFL leviable to anti-dumping duty. In the present case, the imported items are completely different and what has been imported are parts and components. Similarly, reliance placed by the Revenue in Commissioner of Customs vs. Maestro Motors 2004 (174) ELT 289 (SC); Commissioner of Customs vs. Phoenix International 2007 (216) ELT 503 (SC) and Sharp Business Machines 1990 (49) ELT 640 (SC) are also distinguishable. 3.14. The learned counsel further argues that the appellant received the show cause notice only on 24/05/2007 and therefore, the entire period of demand is clearly beyond the normal period of six months. It is also submitted that as per the information obtained through RTI, , Commissioner of Customs, Mumbai, was aware that parts of CFL were imported through Mumbai and Kandla port and the manufacturing process carried out in appellants premises at Morbi and he had sought information in this regard from the Commissioner of Central Excise & Customs, Rajkot. Therefore, the department was also under the belief that anti-dumping duty is not leviable on parts of CFL. 3.15. The learned counsel for M/s. Wipro Limited, while ....
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....CKD/SKD condition and, therefore the demands are clearly unsustainable in law. Accordingly, it is pleaded that the demands be set aside. 4. The learned Special Consultant appearing for the Revenue made the following submissions: - 4.1. The appellants herein had imported CFLs in the guise of components of CFL only to evade anti-dumping duty by resorting to subterfuge. They split-up the consignments and imported them on different dates and sometimes through different ports. During the investigation, each of the appellants had admitted that the imported components, namely, glass tubes with base, holders with wire and PCBs (put together by soldering wires), constituted a complete CFL in SKD condition. In the light of these admitted facts, the contention that the goods have to be assessed as presented i.e., parts and components of CFL cannot be accepted. It is open to the department to club the components or parts of any complete article imported under two or more bills of entry by a person or by more than one person, having common economical interest at or about the same time, so as to make such an article in CKD or SKD condition by virtue of Rule 2(a) of General Interpretative R....
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.... real importer of all the four items and hence the department was right in clubbing them. (c) Similarly, in Maestro Motors Ltd. 2004 (174) ELT 289 (SC), the appellant entered into a collaboration agreement with M/s. Rover U.K., for manufacture of Montego Cars. They imported 217 sets of cars consisting of body assembly complete with accessories, gear, engine assembly etc. and also components, such as, wind screen assembly, wheel rims, glass assembly, radiator assembly, front and back suspension, fuel tank assembly, and so on. In effect, they were importing the entire car in CKD condition for which they filed 11 bills of entry with Bombay Customs and another 14 bills of entry with Madras Customs and claimed the goods to be components and also sought to avail benefit of Notification No. 73/93. The adjudicating authority held that, between the imports in Bombay and Madras, entire cars had been imported in CKD condition and thus the components were classified as cars. At the appellate stage, the Tribunal allowed the appeal of M/s. Maeostro Motors Ltd. The matter reach the honble Supreme Court and the honble apex Court held that such components are nothing but cars in CKD condition by....
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....T A130 (SC)]. (f) In Roma International vs. CC, Mumbai case [2004 (174) ELT 83] this Tribunal had occasion to examine the levy of anti-dumping duty on CFL in CKD/SKD condition. The Tribunal held that Rule 2(a) of GIR can be applied for classifying the product, and by such application, if the goods under import satisfy the description of unassembled or dis-assembled CFL, they can be classified as CFL and anti-dumping duty can be levied on such CFL. (g) In Ankit Asthana vs. Commissioner of Customs (Import), Nhava Sheva, vide final order No. A/223-224/14/CSTB/C-I dated 16/12/2013 this Tribunal examined levy of anti-dumping duty on plastic injection moulding machine imported in CKD/SKD condition and held that, if Rule 2(a) of the GIR is invoked, the goods under importation would satisfy the description of a complete machinery leviable to anti-dumping duty and accordingly, upheld the levy of anti-dumping duty. (h) As regards the argument that since anti-dumping duty Notification expired on 20/12/2006 without any saving clause, and thereafter, proceedings cannot be initiated, sub-section (8) of Section 9A was amended vide Finance Act, 2009 which provided for application of the p....
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....issue for consideration is whether with the expiry of Notification 138/2002-Cus dated 10/12/2002 w.e.f. 20/12/2006, recovery proceedings for escaped anti-dumping duty could be initiated or continued or not? The appellants have argued that, if an Act expires or was repealed, it was regarded, in the absence of the provisions to the contrary, as having never existed except matters and transactions passed and closed. They have also relied on the decision of the honble apex Court in the case of Kolhapur Canesugar Works Ltd. vs. Union of India (supra) in support of this contention to say that the proceedings will terminate since the statute expires. Reliance has also been placed on the decision of the honble apex Court in the case of S. Krishnan vs. State of Madras (supra) and a few other decisions. (i) A similar issue came up for consideration by a Larger Bench of this Tribunal in the case of Surana Metals & Steels (I) Ltd. vs. Commissioner of Central Excise, Chennai 2007 (216) ELT 24 (Tri.-LB). The question for consideration before the Tribunal was, with the omission of Section 3A of the Central Excise Act, w.e.f. 11/05/2001 and also omission of Rules 96ZO and 96ZP of Central Excise....
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.... case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise, Chandigarh [2007 (207) ELT 58 (P&H)]. The question for consideration before the honble High Court was, whether with the omission of Section 3A of the Central Excise Act, 1944, does the duty and interest liability which arose when the Section was in force would get wiped out? The honble High Court also considered the decision of the honble apex Court in the case of Kolhapur Canesugar Works Ltd. (supra) and District Mining Officer vs. Tata Iron & Steel (supra) decisions relied upon by the appellants herein. It was held by the honble High Court that, in view of the provisions of Section 38A of Central Excise Act, 1944, even after omission of Section 3A, the liability of the assessee thereunder would not be wiped out and the question was answered in favour of the Revenue and against the Petitioner. In a recent decision in the case of Mittal Alloys vs. Commissioner of Central Excise, Chandigarh 2014 (304) ELT 399 (P&H), the honble High Court of Punjab & Haryana considered an identical matter. The question before the honble High Court was whether the omission or otherwise of Rule 96ZO(3) of the Central Excise....
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....ng duty as well and therefore, the argument that after expiry of the anti-dumping notification, proceedings cannot be initiated has no legal basis and we reject this contention. 5.3. Reliance has been placed on the clarification given by DGAD in April, 2006 about the scope of levy of anti-dumping duty on CFL to say that the said levy applies only on complete, ready to use CFL and not on CFL imported in CKD/SKD condition. This argument is not tenable for two reasons. The clarification has been issued in 2006 in respect of a levy imposed in 2002. Therefore, the said clarification is not contemporaneous as to have any persuasive value. Secondly, the levy is governed by the Customs Notification 128/2002-Cus. In the said notification as also in the notification issued by the DGAD recommending the levy, the expression used is compact fluorescent lamp falling under Chapter 85 of the First Schedule to the Customs Tariff Act. It is these words used in the notification, which are unambiguous and clear, that would prevail for the purposes of the levy rather than any clarification issued in this regard, that too, after a considerable lapse of time. It is a settled position that the law has ....
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.... due to different rates of duty and each levy operates in its own field. Therefore, merely because the Customs authorities did not choose to demand differential Customs duty in terms of the provisions of Section 12 of the Customs Act, 1962 or Section 3 of the Customs Tariff Act, it does not restrain or prohibit them, in any way, in demanding anti-dumping duty under Section 9A of the Customs Tariff Act. It is also possible that the rates of duty being the same on the complete CFL and also on the parts of CFL, no differential duty liability might have arisen under the provisions of the Customs Act, 1962 or under section 3 of the Customs Tariff Act. That does not mean that if any liability arises on account of levy of anti-dumping duty under Section 9A, separate and independent proceedings cannot be instituted by the department against the importer. 5.5. The next question is whether provisions of Rule 2(a) of the General Interpretative Rules could be invoked for levy of anti-dumping duty. Notification 128/2002-Cus dated 10/12/2002 imposed anti-dumping duty on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act originating in or exporte....
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.... reference would also include to the article presented unassembled or disassembled. Thus, for the purpose of Customs classification, these Rules shall apply and if by applying these Rules, the imported goods become classifiable under Chapter 85, the provisions of anti-dumping notification shall also apply, as per the clear and unambiguous wordings of the notification levying anti-dumping duty. It is in this premise and context, the arguments made by both the sides ought to be considered. 5.7. In respect of imports made by M/s. Samay Electronics, both Shri Vasantbhai Chunibhai Patel, Chief Engineer and Shri Rameshbhai Patel, Director have admitted that they assembled CFL by simply soldering the glass tubes with base imported at Kandla and holders with wire and populated PCB imported at Mumbai and they did not use any other material other than the imported components. It is also an admitted position that imports were managed by the appellant-firm by negotiating with various manufacturers in China. It is also revealed that the entire CFL in SKD condition have been supplied under the same number and date of invoice. However, a suffix to the said invoices were added as K & M in respe....
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....act has been admitted in the statements recorded from the officials of the importer-firm. It is in this factual scenario, one has to examine whether rule 2(a) of GIR would apply or not? 5.10. As regards the argument that Rule 2(a) of the General Rules of Interpretation is not applicable to anti-dumping duty is devoid of merits. Anti-dumping duty is levied on articles dumped into country of the description specified in the notification and falling under the corresponding tariff items mentioned against them. Section 9A forms part of the Customs Tariff Act and therefore, the Rules of Interpretation, which is an integral part of the Schedule to the Customs Tariff Act would apply in respect of the levy under Section 9A as well. Further as per Rule 2(g) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the expression article has the meaning assigned to it in the Customs Tariff Act, 1975. Rule 2(a) of the General Rules of Interpretation which is an integral part of the said Act defines the meaning of the term article. Thus as per the statutory provisions relating to anti-dumping duty, t....
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....ts of the CFL and no additional material was required except for a simple process of soldering of the wires. In the Philips India case, relied upon by the appellant, the facts are different for the reason that the levy was on CFL with all electric components. Inasmuch as the goods imported were not complete CFL with all electric components, it was held that the Notification levying anti-dumping duty would not apply. That is not the case before us. There is no dispute that the goods imported either in a single consignment or in different consignments or at different ports, constitute complete CFL. Therefore, the facts of the Philips India case are distinct and can be distinguished on facts alone. Similarly, in Permalite Electricals (P) Ltd. case, the decision was by an Advance Ruling Authority and it is a well-settled position that the said decision will apply only in respect of the parties involved, i.e., between Permalite Electricals (P) Ltd. and the Commissioner of Customs concerned and the ratio of the said decision has no universal application. Similarly, in the case of Plaza Lamps and Tubes Ltd. (supra), the said decision was based on the earlier decision in Philips India case....
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....t to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statutes; their words are not to be interpreted as statutes. 5.14. The same view was expressed by the Hon'ble Supreme Court in the case of Al Noori Tobacco Products - 2004 (170) ELT 135 (SC) where it observed that,- 13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 14. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut....
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....r chapter or heading depends not only on the terms of the heading, section and chapter notes but also on the rules of interpretation. When the anti-dumping notification imposes duty on CFL falling under Chapter 85 of the Customs Tariff, such duty becomes leviable on all goods which get classified under Chapter 85 as CFL. In particular, in our view, an incomplete, unfinished, unassembled or disassembled CFL satisfying the strict criteria laid down in GIR 2a will get classified as CFL under Chapter 85 and would, therefore, attract anti-dumping duty. If GIR 2(a) is held to be not applicable for anti-dumping duty purpose, then it would be very easy to circumvent the duty by merely removing a small insignificant part of a CFL or importing the same separately and claiming that complete CFL has not been imported. We are of the view that such interpretation that would allow and encourage circumvention and defeat a WTO compatible contingency trade protection measure is not warranted. Moreover, the GIR is an integral part of the same Customs Tariff Act, 1985 under which (Section 9A) anti-dumping duty is also levied and therefore, there is no reason to doubt its applicability specially when t....
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....ld not apply. This contention is bereft of any logic in view of the retrospective amendment made to Section 9A of the Customs Tariff Act, 1975 by inserting sub-section (8) vide Finance Act, 2009. As per the newly introduced sub-section, the provisions of the Customs Act, 1962 and the Rules and Regulations made thereunder including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section ( that is, 9A) as they apply in relation to duties leviable under that Act (that is, Customs Act). Further vide Section 102 of the said Finance Act, validation of the actions taken under Section 9A of the Customs Tariff Act has also been provided as if the provision of sub-section ( 8) existed at all times and recovery shall be made of all such amounts of duty or interest or penalty, fine or other charges which have not been collected as if the amendment made by the said section had been in force at all times. This validation of the action is for the period commencing on/and from 01/01/1995 and ending with day on which Finance (No.2) Bill,....
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....f the honble Apex Court in the case of Mc Dowell & Co. Ltd. vs. The Commercial Tax Officer [1986 AIR 649, 1985 SCR (3) 791] 6. It may, indeed, be difficult for lesser mortals to attain the state of mind of Mr. Justice Holmes, who said, "Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization." But, surely, it is high time for the judiciary in India too to part its ways from the principle of Westminister and the alluring logic of tax avoidance. We now live In a welfare state whose financial needs, if backed by the law, have to be respected and met. We must recognise that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that It stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taking statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction i....