2004 (65) RLT369 (CESTAT-Del.)

(In the Customs, Excise & Service Tax Appellate, New Delhi)

 

Present            :    Shri V.K. Agrawal, Member (Technical)

Shri P.S.Bajaj, Member (Judicial)

 

SHIVALAYA TRADING CORPN., & ANR.

Versus

CC,NEW DELHI

(Final Order Nos. 487-488/2004-B dt. 15.6.2004 certified on 2.7.2004 in Appeal Nos. C/66-67/2003-B)

 

Assessable value ¾Section 14 of Customs Act, 1962-Anti-dumping duty – Additional Duty of Customs- Section 3(1) of Customs Tariff Act, 1975-anti-dumping duty and safeguard duty are not to be taken into account to arrive at the assessable value for levying additional duty of Customs-case remanded for considering valuation of goods.

 

Appearances   :           Shri L.P.Asthana, Adv, for Appellants

Shri O.P.Arora, JDR for Respondents

 

Per V.K.Aagrawal          :

 

These are two appeals, arising out of common Order in Original No. 47/2002 dated 29.10.02 by which the Commissioner Customs has redetermined the anti dumping duty payable by both the Appelliants.

 

2.         Shri L.P.Asthana, learned Advocatesubmitted that both the Appellants imported Acrylic Staple fibre from Taiwan, that the country of origin was declared as Taiwan as mentioned in the Bills of Entry and port of lading, was declared as keeling, that the goods were accordingly assessed to duty as of Taiwan origin and was cleared on payment of appropriate duty; that subsequently as a result of search of the premises of the Shipping line M/s. Tata and NYK Transport Ltd. on 3.2.99 certain documents were resumed by the officers which showed that the country of origin as Thailand and not Taiwan; that in terms of Notification No. 81/97-Cus. dated 24.10.97, anti-dumping duty at the rate of Rs. 9.73 per Kg. was  leviable on import of acrylic fibre of Thailand origin; that during investigation stage itself duty amounting to Rs. 99,62,820 was deposited by Appellant No. 1 and Rs.4,76,535 was deposited by the Appellant No. 2, that after issuing the show cause notice, the Commissioner of Customs, by Order-in-Origin dated 20.4.01, confirmed the duty amounting to Rs. 1,18,17,178 against Appellant No. 1 and duty of Rs. 5,75,690 against Appellant No. 2 besides imposing, penalties  on these Appellants as well as others; that on Appeal the Tribunal vide Final Order Nos. 241-244/2001-D dated 29.11.2001 set aside the penalties imposed on both the Appellants as well as other individual and remanded the matter to the Adjudicating Authority for a limited purpose of recalculating  the duty amount with reference to the value and the rate of anti dumping duty prevalent at that time, that pursuant to the said Final order, the Commissioner of Customs has passed the impugned order in which he has held that rate of anti-dumping duty was correctly applied at the initial stage and no recomputation on this count is called for; that regarding the countervailing duty, the Commissioner has held that the amount of anti dumping duty is to be included for the purpose of determining the amount of Additional Duty of Customs under Section 3 of the Customs Tariff Act; that the Commissioner has also held that AED and CESS are also chargeable on value

including, the anti dumping duty; that as regards the value the Commissioner has mentioned that no submissions had been made at the time of personal hearing.

 

3.         Learned Advocate submitted   that both the Appellants are not pressing   their Appeals regarding application of rate of anti dumping duty; that, however, for the purpose of levying, Additional Duty of Customs under Section 3 of the Customs Tariff Act, the anti dumping duty is not required to be included in the assessable value, that this has already been clarified by the Central Board of Excise & Customs in the Instructions issued in the wake of Budget 2002, that it has been clarified by the Board therein that “for computing the CVD, only the value of the imported article as determined under Section 14 of the Customs Act, 1962 including, the landing charges, if any, and the basic Customs duty chargeable at the rate specified in the First Schedule to the said Customs Tariff Act (read with any notification for the time being in force in respect of the basic customs duty needs to be taken into account. Other duties such as anti-dumping duty, safeguard duty etc. should be taken into account “ Learned Advocate further mentioned that since the goods were actually manufactured by M/s. Thai Acrylic Fibre Company   Ltd. and the Taiwan origin as shown in the invoice and other documents was not correct, the duty should be charged on the value of the goods of Thailand origin manufactured by the aforesaid company; that this specific point was taken by them in their previous Appeal and specific directions were given by the Appellate Tribunal to consider this aspect, that the Department has not

considered this aspect and as such has not complied with the direction of the Tribunal, that the Department has enhanced the assessable value on the ground that they were of Taiwan origin and the question of anti-dumping duty was not under consideration, that subsequently when Revenue itself has held that the goods are of Thailand origin and anti-dumping duty is leviable, the initial enhancement of assessable value is wrong and to that extent the assessable value requires to be recomputed on the basis of original value and no further evidence is required to be adduced by them in this regard because the value of Thailand origin of the same manufacturer is admittedly available

 

4.         Countering the argument Shri O.P Arora, learned Senior Departmental Representative, reiterated the finding as contained in the impugned order and emphasised that as no submissions had been made by the appellants regarding the value of the goods before the Adjudicating   authority, the valuation as adopted by the Department was confirmed   by the Commissioner.

 

5.         We have considered the submissions of both the sides, As the learned Advocate for both the appellants has not pressed the appeals regarding rate of anti-dumping duty applied by the Commissioner under the impugned order for charging the anti-dumping duty, the order is upheld to that extent. Regarding addition of anti dumping duty in the assessable value of the goods for the purpose of levying additional duty of Customs under Section 3(1) of the Customs Tariff Act, the Central Board of Excise & Customs has itself clarified that duty such as anti-dumping duty, safeguard duty, etc. are not to be taken into account to arrive at the assessable value for the purpose of levying the additional duty of Customs. In view of this clarification issued by the Central Board of Excise & Customs which is binding on the Departmental authorities, we hold that amount of anti-dumping duty is not to be included in the assessable value for the purpose of levying additional duty of Customs. The Tribunal vide Final Order Nos. 241-244/2001-D dated 29.11.2001 had remanded the matter to the adjudication Authority for the purpose of recomputing   the duty amount with reference to the value and the rate of anti-dumping duty prevalent at that time. Once the Tribunal has remanded the matter with reference to the value, the Adjudicating Authority should have taken into consideration, the submissions already made with reference to the Valuation by the Appellants, Merely because in the present hearing   before him, the appellants had not made any further submissions, it will not wipe out the earlier representations made by them with regard to valuation and which were on record with the Revenue, We, therefore, find it necessary, in the interest of justice to remand the matter to the Adjudicating, Authority for considering the valuation of the impugned goods, We also direct the Appellants to make proper submissions with regard to the valuation before the Adjudicating Authority within one month of receipt of this order. Both the appeals stands disposed of in the above manner.

 

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