TaxTMI 
TaxTMI 
2016 (1) TMI 827
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....bove said Notification since that entry covers export by any manufacturer and any exporter or a combination thereof. Such doubt arose in the mind of department for the reason that export was made from China by M/s. Tianjin Dagu Chemicals Co. Ltd. and the anti-dumping duty notification issued on 23.1.2009 was amended on 24.3.2008 bringing name of that manufacturer to appear in column No.8 of the original Notification dated 23.1.2008 prescribing the levy of anti-dumping duty as exporter of the subject goods. Revenue says that when name of the manufacturer was not appearing in Column No.8 of the notification dated 23.1.2008, the export shall fall under Sl.No.23 of the said Notification being any exporter as envisaged by the entry. 3. For convenience of reading both Sl.Nos.19 and 23 of the Notification dated 23.1.2008 are extracted below:- S.No. Sub Heading Description of the goods Specification COD COE Producer Exporter Duty amount Unit of measurement Currency 19 390421 Photopolymer of chloride Monomer (PVC) Suspension Grade) As per Annexure Republic of china Any Tianjin Dagu Chemical Co. Ltd. Tianjin Bohai Chemical Industrie....
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....ended scope of levy brining the export made by both producer and exporter to the ambit of levy. Therefore, the amending notification is to be read in the manner that advances the object of extending scope of levy to gather Revenue without escapement of a manufacturer from levy under Sl.No.19 of the Notification. The amendment was thus made to protect interest of Revenue prescribing trade remedy measure as a curative one. 7. Revenues claim that import of the appellant shall fall under No.23 of notification does not appeal to common sense. Amending notification had its intention making clear that apart from the exporter specified in column 8 of Sl.No.19, if the producer named under that serial number also exports subject goods, such goods shall be liable to anti-dumping duty. It is well settled law that generality excludes specific. Therefore, appellants imports fall under the purview of Sl.No.19 of the Notification dated 23.1.2008 since country of origin, producer and exporter belong to China and levy of anti-dumping duty was goods specific and country specific. This being most specific case than the generalization prescribed by sl.no.23 of the Notification, case of the appellant....
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....i-dumping duty as compared to those under Sr.No.23. In these circumstances, the Appellants claimed that their product did not attract any anti-dumping duty, as they were not covered under either of these entries. Though they abandoned this stand later on. The Revenue on the other hand sought to levy duty prescribed under Sr. No.23 on the ground that the Appellants would be covered under Any other combination of producer-exporter. 10. Subsequently, on 24.03.2008 Notification No.38/2008-Cus was issued to amend the entry at Sr.No.19 to include the name of Tianjin Dagu Chemical Co. Limited (the manufacturer) in the category exporters in addition to the existing exporter Tianjin Bohai Chemical Industries Import and Export Corporation. It is this amendment in the Notification that was prompted the appellants to claim that the amendment had a retrospective effect, a view upheld by the Ld. Member (Judicial). The Member (Judicial) has expressed the view that the rationale behind the amendment was to overcome the shortcomings in the earlier Notification whereby subject goods exported by producer-exporter escaping anti-dumping duty were brought to levy from the date the definitive anti-dum....
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.... goods, which is subject matter of the present dispute, would be liable to anti-dumping duty in terms of entry at Sr. No.23. 11.3 That a notification has been issued as a curative measure has to emerge from the amending Notification itself. There is no scope for any intendments merely for the reason that it amended an existing entry. Such an interpretation is bound to upset the assessments made in accordance with the then existing provision of law or Notification. It is pertinent to mention here that the Appellants have been contending that no being covered by the anti-dumping duty Notification in question as (Sr. No.19 did not mention the name of Tianjin Dagu Chemical Co. and Sr. No.23 did not cover the exports made by manufacturer-exporter) they were not liable to pay any anti-dumping duty. Later on they abandoned this argument and claimed that the consignment was covered under entry at Sr. No.19 amended by Notification No.38/2008-Cus dated 24.3.2008. In the absence of any declaration in the Notification to the effect that inclusion of the name of Tianjin Dagu Chemical Co. was from the date of the original Notificatio....
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....) provided that even when no claim of total or partial partition is made at the time of making assessment under Section 143 or 144 of the Act, if it is found after the completion of assessment that the family has already effected as partition, total or partial, all the members shall be jointly and severally liable for the tax as payable by the joint family and the tax liable shall be apportioned among the members according to the portion of the joint family property allotted to each of them. The Apex Court was of the opinion that sub-section (6) of Section 171 thus, for the first time, imposed in the case of this kind joint and several liability on the members for the tax assessed on Hindu Undivided family and thus was personal liability as distinguished from the liability limited to the joint family property received on partition. The Apex Court thereupon held and observed that : We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating of imposing a new obligation or liability, construe sub-section (6) of Section 171 as embracing a case where assessment of a Hindu undivided family is ma....
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....of opinion was expressed: "Whether as per opinion of learned Member (Judicial), amending Notification No. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/2008-Cus dated 23.1.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty. OR Whether as per opinion of Member (Technical), amending Notification No. 38/2008-Cus. dated 24.3.2008 making amendment in Sl. No. 19 of the Notification No. 11/2008-Cus. will be prospective in nature." The said difference of opinion has been referred to me. 16. Ld. Advocate for the appellant has contended that : (i) vide notification dated 14.2.2008, Directorate General of Anti-dumping & Allied Duties issued corrigendum to final findings notified vide notification dated 26.12.2007 in respect of the anti-dumping investigation concerning import of PVC Suspension Grade, originating in or exported from Indonesia, Malaysia, Korea RP, Japan, USA, Thailand, China PR and Chinese Taipel. The said notification dated 14.2.2008, inter alia, stated that Sl. No. 19 of the final findings notified vide Notification dated 26th December 2....
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....ssuance of such Customs notification imposing anti-dumping duty, anti-dumping duty is levied. This is well settled and is not disputed by the appellant or Revenue and therefore need not be dwelt upon any further. 19. As is evident from the difference of opinion (quoted above) the only issue to be decided by me is whether Notification No. 38/2008-Cus. dated 24.3.2008 inter alia amending Sl No. 19 of Notification No. 11/2008-Cus. dated 23.1.2008 has retrospective effect or prospective effect. For this purpose, it is useful to quote the said notifications. Notification No.11/2008-Cus dated 23.01.2008 whereas in the matter of import of Homopolymer of Vinyl chloride monomer (PVC) suspension grade (hereinafter referred to as the subject goods) falling under the sub-heading 3904 21 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the said Customs Tariff Act), originating in, or exported from, Taiwan, Peoples Republic of China, Indonesia, Japan, Korea RP, Malaysia, Thailand and USA (hereinafter referred to as the subject countries), the designated authority in its final findings vide Notificationno.14/08/2005-DGAD, dated th....
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.... 10. 11 1. .. .. .. .. .. .. .... .. .. .. 19 3904.21 Homopolymer of vinyl chloride monomer (PVC) (suspension grade) Homopolymer of vinyl chloride monomer (suspension grade), where various polymer chains are not linked to each other, excluding the specially PVC suspnesion resins such as cross-linked PVC, Chlorinated PVC (CVPC), vinyl chloride-vinyl acetate copolymer (VC-VAC) PVC paste resin and PVC blending resin Peoples Republic of China Any Tianjin Dagu Chemical Company Ltd. Tianjin Bohai Chemical Industries Imp & Exp Corporation 1047 MT Rs. Notification No. 38/2008-Cus. dated 24.3.2008 [In exercise of the powers conferred by sub-section (1) and sub-section (5) of Section 9A of the Customs Tariff Act, 1975 (51 of 1975) read with rules 18 and 20 of the Customs Tariff (Identificatiion, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury)Rules, 1995, the Central Government, hereby makes the following amendments in the notification of Government of India in the Ministry of Finance (Department of Revenue ) No. 11/2008-Custom....