COMMISSIONER OF CUSTOMS, COCHIN Vs. RAGHAV ENTERPRISES

JUDGEMENT

(1.) THESE two appeals have been filed by the Revenue against the Orders -in -Appeal Nos. 101/2003 and 102/2003, both dated 21 -10 -2003 passed by the Commissioner of Customs (Appeals), Cochin. The issue involved in both the appeals is one and the same. Hence we are issuing a common order.

(2.) THE Respondents, M/s. Raghav Enterprises filed Bills of Entry on 20 -9 -2002 and 11 -10 -2002 for clearance of 3,02,000 pieces each of CFL lamps while M/s. Orient Impex filed Bills of Entry on 15 -11 -2002 and 11 -11 -2002 for clearance of 1,52,000 pieces each of CFL lamps. The goods were classified under Chapter 8539 and assessed accordingly. Subsequently, the Government of India issued Notification No. 138/2002 -Cus., dated 10 -12 -2002 imposing definitive anti -dumping duty on all imports of CFL from Peoples Republic of China and Hong Kong and as per Para 2 of the said Notification, the anti -dumping duty was to be levied with effect from the date of imposition of provisional anti -dumping duty i.e. 21 -12 -2001. The validity of the provisional anti -dumping duty is only for 6 months. Hence it was in force only up to 26 -6 -2002. When the goods were imported, there was no levy of provisional anti -dumping duty. However, in view of the Notification No. 138/2002 -Cus., dated 10 -12 -2002, the demand letters were issued to the Respondents on 7 -2 -2003 under Section 28(1)(b) of the Customs Act, 1962. The lower Adjudicating authority confirmed the demands. Further the Respondents appealed to the Commissioner (Appeals) who set aside the order of the Original Adjudicating authority with the following grounds - The Supreme Court in number of decisions has held that chargeability of duty would require that when the goods enter the territory of India the goods should be chargeable to duty. In the instant case, I find that the goods were imported, no duty was chargeable. Chargeability cannot be created with retrospective effect. The Revenue is aggrieved over the decision of the Commissioner (Appeals). According to the Revenue, the Government of India has power to levy anti -dumping duty with retrospective effect and retrospective effect will commence from the date of imposition of provisional duty.

(3.) SHRI R.N. Viswanath, learned SDR appeared on behalf of the Revenue and Shri Rajesh Chander Kumar, learned Advocate appeared on behalf of the Respondents.