TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 312
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....ii) I impose a Penalty of Rs. 6,07,043/- (Rupees Six lakh seven thousand and forty-three only) on M/s Vishal Impex 306, Krishna Tower, 15/63, Civil Lines, Kanpur (U.P)-208 001, under Section 114 A of the Customs Act, 1962." 2.1 Respondent has imported the New Radial Truck Tyres & Flaps Goods Tyers made from China vide Bill of Entry No.2065593 dated 13.06.2017 filed at ICD Panki. The goods were declared under the CTH-40112010 of First Schedule to Customs Tariff Act, 1975. 2.2 Revenue was of the view that new/n used pneumatic Radial tyres (Including Tubeless) with or without tubes and/or flap of rubber, having nominal rim dia code above 16" used in buses and lorries/trucks, when imported into India, attract Antidumping duty in terms of Notification No.12/2010-ADD dated 19.10.2010. Whereas respondent had on the bill of entry, fail to assess the Anti-Dumping Duty on the goods imported. 2.3 A show cause notice dated 04.06.2022 was issued to the respondent asking them to show cause as to why- "(i) The Anti-dumping Duty amounting to Rs. 6,07, 043 (Rupees Six lakh seven thousand and forty-three only) should not be confirmed and recovered from them under Section 28 of Cust....
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....travened the provisions of Section 17, Section 46 of the Customs Act, 1962 read with Sl. No. 6 of the Notification no. 12/2010ADD dated 19.02.2010 as the said notification was not rescinded. Since the goods under reference were imported without the payment of Anti-Dumping Duty, the same is liable to be recovered from them under Section 28 of Customs Act, 1962 along with interest by invoking the extended proviso of limitation. Due to the contravention of the said provisions, the Importer has also made themselves liable to penalty as proposed in the SCN which was subsequently confirmed during adjudication. f. That the Article 265 ordains that no tax shall be levied and collected except by authority of law. The expression 'Law' in terms of Article 265 means an act of the legislature. Parliament through Section 9A has delegated the power to impose an ADD by issuance of a Notification in the official gazette to the Central Government. Thus, said function is a legislative Act and cannot be categorized as a quasi-judicial function. Further, A three-judge bench of the Supreme Court in Haridas Exports v. All India Float Glass Mfrs. Association and Ors. [AIR 2002 SC 2728] ha....
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.... terms of the Sl. no. 6 of the Notfn. No.12/2010-ADD dated 19.02.2010; and also in light of Hon'ble Tribunal vide Final Order No. AD/18-24/2011(PB) dated 02.08.11 in case of Bridgestone Tyre Manufacturing (Thailand) Vs. Designated Authority 2011 (270) ELT 696 (TRI-DEL) 5.2 Now, coming to the issue, I find that the said demand originated on the basis of Sl. No. 6 of the Notfn. No. 12/2010-ADD dated 19.02.2010. I further find that the said Notification is based on the Final Findings dated 01.01.2010 of the 'Designated Authority (D.A.) pursuant to Anti-dumping investigations initiated on 21.10.2008. The said notification was challenged along with Final Findings dated 01.01.2010 of the Designated Authority (D.A.) in the case of Bridgestone Tyre Manufacturing (Thailand) Vs. Designated Authority 2011 (270) ELT 696 (TRI-DEL) and the Hon'ble Tribunal set aside the 'Final Findings' dated 01.01.2010 and the Customs Notfn. No. 12/2010 dated 19.02.2010 in the said judgement. 5.3 I further find from the impugned Order-In-Original dated 29.05.2023 that the Hon'ble Supreme Court has admitted Civil Appeal nos. 8125-8131 of 2011 against the CESTAT Final Ord....
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....try, the D.A. has relied on the sum of domestic sales of Indian producers and imports from all sources. As such, the D.A. has actually computed the quantities supplied in the domestic market indigenously as well as from abroad. The actual demand could be much more as there may be a gap in supply. Therefore, the figures computed under paragraph 119 of the impugned final findings can be more appropriately called quantity consumed or consumption rather than demand. This figure shows that the sale by domestic industry increased from 9999 MTs in 2004-05 to 24159 MTs during the POL The imports from subject countries have also increased during the same period from 1361 Mts to 28386 MTs. No doubt the increase is more in respect of imports from the subject countries than the increase in respect of the domestic industry. If there had been only an increase in respect of imports and there was no increase in respect of domestic sales or there was a decline in domestic sales, it could be concluded safely that the imports showed an adverse volume effect over the domestic sales. But when the domestic sales have also grown by about 142%, it is difficult to conclude that the imports have given rise ....
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.... 27. The D.A. has noted in paragraphs 148 & 149 of his final findings that the cash profits for the domestic industry has increased from Rs. 260.17 lakhs in 2004-05 to Rs. 1101.45 lakhs in the POI, the latter amount is only Rs. 7 44 lakhs less than the cash profits of Rs. 1108.89 in the year 2006-07, but the growth during the injury period is quite high from the level of Rs. 260.17 lakhs in the base year 2004-05. As seen from the final finding in paragraph 130, the domestic industry has increased its capital employed from Rs. 12,923 lakhs in 2004-05 steadily during the injury period to Rs. 27,159 lakhs. The percentage return on investment has been indicated for 2004-05 as (0.62), for 2005-06 as (1.04), for 2006-07 as 1.80 and for the POI as 0.40. Despite increase in the capital employed, the return on investment has turned positive during 2006-07 and during POI. This cannot be taken as injury indicator especially considering the submissions by the All India Tyre Dealers' Federation before the D.A. that rate of return of capital in case of tyre industry world over is known to be low as a historical truth. 28. The D.A. has attributed increase in inventories from 116....
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....hand, the following submission made by appellant No. 4 regarding increase in profits earned by the domestic industry is significant :- "The appellant submits that the motive behind any business operation is of earning profits and in the present case the impugned order holding that the domestic industry is suffering injury is based on facts that are pertinently contrasting from the findings and allegation in the investigation. The trend of cash profit shows that the domestic industry is in pink of health and its cash profit is multiplying. There is only marginal dip, which is not even one percent, in the POI, which can by no stretch of imagination be termed as injury." 30. The overall picture that emerges from examination of various injury parameters does not support the conclusion of injury drawn by the D.A. A number of parameters such as capacity, production, capacity utilization, sales, selling prices and profitability of return on investment, wages, employment, productivity etc. recorded an improvement during the periods chosen for injury analysis. It has also been submitted on behalf of the appellants that the domestic industry was suffering losses even before....