TaxTMI 
TaxTMI 
2026 (9) TMI 1678
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....e notice dated 06.01.2021 proposing recovery of Anti Dumping Duty of Rs. 20,95,712/- and IGST of Rs.3,77,228/- under Section 28(1) of the Customs Act, 1962 alongwith interest at the appropriate rate and penalty under Section 117 of the Customs Act, 1962. 1.1 The above show cause notice was decided by the Additional Commissioner vide Order dated 28.05.2021, wherein he confirmed the above demand of Anti Dumping Duty of Rs.20,95,712/- and IGST of Rs.3,77,228/- under Section 28(1) of the Customs Act, 1962 read with Section 5 of the IGST Act, 2017 along with applicable interest under Section 28AA of the Customs Act, 1962 read with Section 50 of the CGST Act, 2017. He also imposed a penalty of Rs. 4Lakh on the importer under Section 117 of the Customs Act, 1962. 1.2 Aggrieved with the above order, appellant filed an appeal before the Commissioner of Customs (Appeals) mentioning that, the goods cannot be reassessed without any appellate order as held by Hon'ble Supreme Court in the case of ITC Ltd. reported at 2019-TIOL-418-SC-CUS-LB. Reliance was also placed on the decision in the case of Axiom Cordages Ltd. Vs Commissioner of Customs Nhava Sheva-II reported at 2020 (9) TMI CESTAT-....
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....ich they rely on the decision of Hon'ble Bombay High Court in the case of Dimension Data India Pvt. Ltd. vs Commissioner of Customs, 2021 (376) ELT 192 (Bom.). 3. During hearing, learned counsel emphasized on the decision of Hon'ble Supreme Court in the case of ITC Limited (cited supra) and argued that since Revenue did not file appeal against self assessment order made by the appellant which order therefore attained finality. Hence, Revenue has no ground for demanding Anti Dumping Duty and IGST from the appellant. He also submitted that in ITC Case, Hon'ble Apex Court considered this issue in detail and after considering their decision in the case of Flock (India) Pvt. Ltd. [2000 (120) ELT 285(SC)] and Priya Blue Industries Ltd. case [2004 (172) ELT 145 (SC)], it held that "applications for refund were not maintainable where the underlying assessment (including self assessment) had not been modified by the appropriate statutory proceedings; self assessment is an assessment order and appealable, and Section 27 cannot be used to read-judicate or reopen unmodified assessment orders". 3.1 Learned counsel also emphasized above point by relying on the order of CESTAT Mumbai in the....
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....n of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, after considering the aforesaid final findings of the designated authority, hereby imposes on the subject goods, the description of which is specified in column (3) of the Table below, the specification of which is specified in column (4), falling under tariff heading of the First Schedule to the Customs Tariff Act as specified in the corresponding entry in column (2), originating in the countries/territories as specified in the corresponding entry in column (5), exported from the countries/territories as specified in the corresponding entry in column (6), produced by the producers as specified in the corresponding entry in column (7), exported by the exporters as specified in the corresponding entry in column (8), and imported into India, an antidumping duty at the rate to be worked out as percentage of the landed value of imports of the subject goods as specified in the corresponding entry in column (9) of the said Table, namely :- TABLE Sl. No. Tariff heading Description of goods Specification Countries /Territories of origin Countries /Territories....
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.... exemption from duty upto certain specified quantity of finished goods manufactured by using unconventional raw materials. As per them, duty was paid but exemption was available to them under a Notification, hence, they filed the refund claim. In these facts, Hon'ble Supreme Court held that unless assessment is challenged by way of filing an appeal and there is an appellate order to that effect, refund will not arise. Para 44 of the said decision amplifies this proposition in following words: "44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated with....
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....) cannot debar the issuance of a show-cause notice for confiscation of goods under Section 124. Fraud, if established, unravels all. An order under Section 47 obtained by the employment of fraudulent methods does not have to be set aside by the exercise of revisional powers under Section 130 before the ill-effects of the fraud can be set right by initiation of the process of confiscation of the fraudulently cleared goods under Section 124." 5.4 Similar issue also came up for consideration before CESTAT Mumbai in the case of Asia Motors Works where customs duty was demanded by issuing demand cum show cause notice without challenging the assessment order. The Tribunal in their order reported at 2020 (371) ELT 729 (T) held as under: "6. It has been argued by the Ld. Counsel for AMW that since the assessment has not been challenged, demand under Section 28 cannot be raised. In this regard Ld. AR had relied on decision of Ld. Apex Court in case of Jain Shudh Vanaspati Ltd. (supra) wherein it has been held that the demand can be raised under Section 28 even if challenging assessment. Consequently this argument of Ld. Counsel for AMW is rejected." In view of above judicial ....
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....tion (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government.]" 5.7 Sub Section 1 of Section 9A of the Customs Tariff Act, 1975 which deals with Anti-dumping duty, is reproduced as under:- "(1) Where any article is exported by an exporter or producers from any country or territory (hereafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article." 5.8 From combined reading of the above provisions, it is clear that Antidumping duty levied under Section 9A of the Customs Tariff Act, 1975 is a duty of customs. Therefore, as per Section 3(7) read with Section 9A of the Customs Tariff Act, 1975 and further read with Section 12 of the Customs Act, 1962, IGST is leviable on Anti-dumping duty which was not paid in this case by the appellant at the time of self-assessment. We rely on the decision of Mumbai Tribunal in the case of Korpan Ltd. Vs....