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2004 (65) RLT369 (CESTAT-Del.)
(In the Customs, Excise & Service Tax Appellate,
and New Delhi)
Present: Shri
V.K. Agrawal, Member (Technical)
Shri
P.S.Bajaj, Member (Judicial)
SHIVALAYA TRADING CORPN., & ANR.
Versus
(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.
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.