SILKONE INTERNATIONAL Vs. COMMISSIONER OF CUSTOMS, CHENNAI

JUDGEMENT

(1.) BOTH these appeals arise from OIA Nos. 349/2004, dated 17 -5 -2004 & 348/2004, dated 14 -5 -2004. The appellants had imported Mulberry Raw Silk of Grade 2A. They were ordered to pay Anti -dumping Duty. The goods were confiscated and imposed with fine and penalty, which is under challenge.

(2.) THE learned Consultant submits that in so far as the imposition of Anti -dumping Duty is concerned, there is no challenge. But, they are challenging the imposition of RF and penalty on the ground that there was no provision for imposing the same in terms of Section 9 of Customs Tariff Act which provides for imposition of Anti -dumping Duty. He submits that on this very issue, the Apex Court, in the case of CCE, Ahmedabad v. Orient Fabrics Pvt. Ltd. - 2003 (158) E.L.T. 545 (S.C.), has held that there is no provision made out in the Central Excise Act for ordering confiscation and penalty in respect of imposition of Anti -dumping Duty. He refers to the judgments rendered by the Tribunal in setting aside the RF and penalty in the cases of (i) Supreme Woollen Mills Ltd. v. CC, Nhava Sheva, Mumbai - 2004 (167) E.L.T. 439 (Tri. -Del.). (ii) Bajaj Health and Nutrition Pvt. Ltd. v. CC, Chennai - 2004 (166) E.L.T. 189 (Tri. -Mumbai). He also refers to the Delhi High Court judgment rendered in Pioneer Silk Mills Pvt. Ltd. v. UOI - 1995 (80) E.L.T. 507 (Del.) which has been confirmed by the Apex Court as reported in 2002 (145) E.L.T. A74 (S.C.). He submits that this provision had been carved out by bringing in amendment to Section 9A of the Customs Tariff Act vide Section 76 of Finance (No. 2) Act, 2004. Therefore, he prays for setting aside the RF and penalty.

(3.) THE learned JCDR fairly concedes that the issue is covered in assessees favour.