2021 (9) TMI 1012

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....F.No. ICD/Pimp- C'wad/BE-737/05-06 dated 23.05.2006 dated 23 May 2006 was issued to the respondent covering five Bills of Entry under which the product 'Lutex -701' was imported namely: "(1) Bill of Entry No. 500271 dated 18.03.05; (2) BilI of Entry No. 500044 dated 03.05.05; (3) Bill of Entry No. 500110 dated 13.06.05; (4) Bill of Entry No. 500161 dated 1 7.08.05; and (5) Bill of entry No. 500162 dated 17.08.05." Another show cause notice F.No. ICD/Pimp-Chwd/SCN/204/06-07 dated 30.06.2006 dated 30 June 2006, covering six Bills of Entry' was issued to the respondent under which the product 'Lutex - 780' was imported. The details of the Bills of Entry are: "(1) Bill of Entry No. 500183 dated 26.08.05; (2) Bill of Entry No. 500034 dated 27.04.05; (3) Bill of Entry No. 500073 dated 24.05.05; (4) Bill of Entry No. 500109 dated 13.06.05; (5) Bill of Entry No. 500148 *dated 28.07.05; and (6) Bill of Entry No. 500128 dated 29.06.05." 4. The allegation in the Show Cause Notice dated 23 May 2006 is that the respondent mis-declared its goods as 'Lutex - 701' which on tests were found ....

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.... appellant that its goods having fallen under CTH 40021100 does not come under CTH 40021900 for levy of anti dumping duty for the reason that goods of CTH 4002 1100 were not subject matter of antidumping investigation at any stage." The second finding is as follows: "It may be stated that while issuing show-cause notice, learned adjudicating authority had not examined the classification based on the report of the Laboratory. The show-cause notice issued in 2006 was to finalise the assessment only, without any proposal to levy anti-dumping duty. There was no reference to the character and nature of the imported product also therein. The Notification No.100/2004-Cus dated 26.09.2004 does not intend to levy anti-dumping duty on the product imported by the appellant. Accordingly, the show cause notice having no basis, both the appeals are allowed." 8. The Commissioner of Customs, Pune is in appeal. 9. Before we deal with the submissions which have been urged on behalf of the contesting parties, it is necessary to preface this judgment with a reference to Notification 100/2004-Cus dated 28 September 2004. The Notification sets out that on 30 July 2003 the Designated Au....

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....uct of this heading, in primary forms or in plates, sheets or strip - Styrene butadiene rubber (SBR); carboxylated styrene-butadiene rubber (XSBR)         4002 11 00 - Latex   kg.   10%   4002 19 - Other       4002 19 10 - Oil extended styrene butadiene rubber   kg.   10%   4002 19 20 - Styrene butadiene rubber with styrene content exceeding 50%   kg.   10%   4002 19 30 - Styrene butadiene styrene oil bound copolymer   kg.   10%   10. The respondent contends that its goods were classified under CTH 40021100 and were provisionally cleared. The respondent submits that the assessment was finalized by the order of the Commissioner of Customs, levying anti-dumping duty without there being any proposal in the show cause notice for change in the classification. The Revenue contended that anti-dumping duty was imposed in terms of Notification No.100/04 - Customs dated 26 September 2004 and anti-dumping duty was correctly levied on the goods. 11. In the present proceedings, there....

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.... (i) The explanation provided by the respondent in the reply to the notice to show cause was to the following effect: "3.4 SBR of 1900 series is essentially a dry polymer The Test Report of the Deputy Chief Chemist itself describes the sample tested as: ''the samples is in the form of white liquid. It is an aqueous emulsion of styrene butadiene .......... " (Kindly refer to Annexure 8) The goods imported by us, which exists in a liquid form, are widely used in the paper industry and known in common trade parlance as Latex. Unlike the former, SBR of the 1900 series is a dry polymer, which is incapable of existing in a liquid form. Unlike Latex, SBR of 1900 series has wide application in the footwear industry and in the manufacture of "V" Belts. Thus the two products are completely different in their physical state or applicability though there are certain common chemicals in their chemical composition." (ii) Moreover, according to the respondent, in its reply: "3.8 Latex and SBR of 1900 are two separate products- As mentioned above, the product imported by us is "Styrene Butadine Co-polymer". The goods imported by us, ....

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....89 per kg as per Notification No: 100/2004 dated* 28.09.2004." Paragraph 4 of the Notice contains similar allegations that: "4. Whereas the goods imported in question were declared as 'LUTEX 701' in import documents and, not as 'Styrene Butadiene Rubber (SBR) of 1900 Series which has been confirmed by Test Report dated 06.03.2006 from IRMRA. The importer is regular importer of subject goods and are actual users of the goods and therefore they should be well aware of the description of the goods imported and the duty liability thereon. Therefore it appeared that the Importer mis declared the description of the goods as TUTEX 701 instead of as Styrene Butadiene Rubber (SBR) of 1900 Series with the intention to evade the Anti Dumping Duty. At the time of filing of Dills of Entry, the Importer did not come up with full a.id complete description of the goods imported. If the Importer had declared the complete and proper description of the. goods at the time of filing of Bills of Entry, the Anti Dumping duty would have been levied at the time of provisional assessment. Therefore it appears to be a case of suppression of facts on the part of the Importer by not dec....