COMMISSIONER OF CUSTOMS, CHENNAI Vs. SUJA RUBBER INDUSTRIES

JUDGEMENT

(1.) THIS Revenue appeal arises from Order -in -Appeal No. C3/31/96, dated 24 -1 -96 by which the Commissioner (Appeals) has held that anti -dumping duty confirmed by the original authority in terms of Notification No. 159/95, w.e.f. 14 -11 -95 is not applicable to the goods which had been bonded by the importer in view of matter being covered by the Larger Bench judgment rendered in Vazir Sultan Tobacco Co. Ltd. v. CCE [1985 (21) E.L.T. 757] which has been affirmed by the Hon'ble Apex Court. The findings recorded by the ld. Commissioner in the order impugned is extracted herein below : -

(2.) REVENUE is aggrieved with this order and contend that rate of duty should be the rate as on the date on which Section 15(1)(b) is applicable to warehouse goods and the date on which the goods are actually removed from the warehouse. It is stated that in the instant case anti -dumping duty was levied on the goods since ex -bond clearance took place after 14 -11 -95. Revenue disagrees with importer's contention that since the goods were imported and bonded prior to 14 -11 -95, the goods are not chargeable to antidumping duty. It is stated that anti -dumping duty was levied in terms of Section 9A of Customs Tariff Act read with cited notification. Hence, it is also a duty of customs. Subject goods were chargeable to basic and additional customs duties under Sections 2 and 3 of the Customs Tariff Act, 1975. The rate of duty has to be applied in terms of Section 15(b) of the Customs Act, 1962, according to which, the date of removal from the warehouse is the taxing point. In this regard, support is taken on the judgment in the case of GOI v. Jai Hind Mills Ltd. & Ors. [1981 (8) E.L.T. 370] and that of Impex v. CC, Bombay [1987 (29) E.L.T. 433 (T)] which lays down the proposition that rate of duty will be the rate on which the goods are removed from the warehouse. Therefore, Revenue seeks for setting aside the impugned order of Commissioner (Appeals) and for upholding the order of the original authority imposing anti -dumping duty on the goods imported from Japan in terms of notification issued on 14 -11 -95 in respect of goods which were removed ex -bond from the warehouse.

(3.) ON the other hand ld. Counsel Shri V. Balasubramanian defends the order and took us through various provisions of the Customs Tariff Act, more particularly, the sections dealing with imposition of anti -dumping duty, even with retrospective effect. He pointed out from Section 9A of CTA that the anti -dumping duty is required to be determined "upon the importation of such article into India, and 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." He pointed out that it applies to the goods in the instant case which are under importation and under assessment before entry into the country and not those goods which have already entered and are bonded. If that was the case, then the notification should have been given retrospective effect and as there is no such provision of retrospective effect in the notification, therefore the notification has the effect only prospectively on the imported goods from the date on which it is promulgated and therefore on a clear reading of the provisions of Antidumping Act, the order passed by the Commissioner (Appeals) is sustainable and requires to be upheld. He also took us through the relevant Sub -section (8) of Section 9A of CTA which reads as follows : -