REPPAL TRADERS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE impugned order passed by ld. Commissioner (Appeals) sustained a total demand of Anti -Dumping Duty (ADD, for short) of Rs. 27.4 lakhs on Citric Acid (CTH 2918.14) imported by the appellant from China. Notification No. 44/99 -Cus. dated 29.04.1999 issued by the Central Government had fixed ADD for Citric Acid of Chinese origin at the rate of Rs. 824 PMT. Notification No.78/2000 -Cus. dated 26.05.2000, which superceded the earlier Notification, enhanced the rate of ADD for the above goods. The relevant Bills of Entry for warehousing were filed and accordingly the goods were warehoused prior to 26.05.2000. The ex -bond Bills of Entry were filed and the goods cleared for home consumption on 26.05.2000, the date on which Notification No. 78/2000 was issued. Payment of ADD on the goods, at the time of ex -bonding, was made by the assessee at the rate determined under the earlier Notification (No. 44/99). The department demanded differential duty on the basis of enhanced rate fixed under Notification No. 78/2000 and this demand was confirmed by the original authority and sustained by the first appellate authority.

(2.) AFTER examining the records and hearing both sides, we find that, when the warehousing Bills of Entry were filed, ADD was leviable at the rate of Rs. 824 PMT, but, when the ex -bonding Bills of Entry were filed, it was leviable at higher rate. The assessee has chosen the lower rate. The Revenue has demanded duty at the higher rate. The question, therefore, is whether ADD was leviable on the subject goods at the rate prevalent on the date of its entry into warehouse or on the date of its clearance for home consumption. Ld. Commissioner (Appellants) has relied on the Tribunal's decision in Sneh Enterprises v. Commissioner of Customs, New Delhi 2004 (178) E.L.T.764 (Tri. - Del.), to hold that ADD was leviable on the goods at the rate prevailing on the date of its clearance for home consumption. Accordingly, the demand of differential duty has been sustained.

(3.) LD . Counsel for the appellants submitted that the concept of leviability of ADD at the rate in force on the date of clearance of the goods for home consumption was one borrowed from the Customs Act, 1962. He argued that, insofar as the date for determination of rate of duty was concerned, the provisions of the Customs Act were not applicable to AD duty. According to ld. Counsel, for the purpose of ascertaining the relevant date for determination of rate of AD duty, the relevant provisions of the Customs Act or the rules or regulations made thereunder could be look into, only after enactment of the Finance (No. 2) Act, 2004, which amended Sub -section 8 of Section 9A of the Customs Tariff Act, 1975. Prior to the date on which the Finance Act came into force, there was nothing in Sub -section 8 of Section 9A of the Customs Tariff Act to indicate that the provisions of the Customs Act were applicable with regard to the date for determination of rate of AD duty. On the basis of these statutory provisions, ld. Counsel argued that, when the goods in question were imported and cleared, the provisions of the Customs Act were not applicable to assessment of AD duty. It was pointed out that, in the case of Sneh Enterprises (supra), the Tribunal had not noticed the amendment brought to Sub -section 8 of Section 9A of the Customs Tariff Act by the Finance (No. 2) Act, 2004. Therefore, according to him, the decision in Sneh Enterprises (supra) was per incuriam Ld. Counsel also relied on the Tribunal's Larger Bench decision in Caprihans India Ltd. v. Collector of Customs, Bombay 2001 (129) E.L.T. 162 (Tri. - LB), wherein Section 27 of the Customs Act was held to be inapplicable to levy, collection and refund of ADD. Reliance was also placed on Final Order No. 712 and 713/2004 dated 12.08.2004 passed by this Bench in the present appellant's own earlier case (Appeal Nos. C/28 and 29/2003), wherein the Tribunal's decision in the cases of Commissioner of Customs, Chennai v. Suja Rubber Industries 2002 (49) R.L.T. 326 (CEGAT -Che.) and Indo Rama Synthetics (I) Ltd. v. Commissioner of Central Excise, Madurai 2003 (57) R.L.T. 345 (CEGAT -Mum.) was followed by the Bench to hold that the relevant date for levy of AD duty was the date on which the goods were imported.