Cus - ADD notifn 86/2011 - tolerance is given to product not to limits - tolerance is to be added to width actually found in consignments - in case on hand, width was found to be more than 1250 mm and which already is beyond tolerance limit to attract Anti-dumping duty: CESTAT
By TIOL News Service
MUMBAI, NOV 01, 2013: IN the matter of import of Cold-Rolled Flat products of Stainless Steel of the width of 600 mm up to 1250 mm of all series further worked then Cold Rolled (cold reduced) with a thickness of up to 4mm, the Central Government has imposed Anti-dumping duty vide notification 14/2010-Cus dated 20/02/2010.
The notification was amended by notification 86/2011-Cus and which did the following -
"In the said notification, in para 1, after the Table, the following shall be inserted, namely:-
"(a): Width tolerance of (+) 30mm shall apply to Mill edged, Cold-rolled flat products of stainless steel of specified width of 1000mm or more but not exceeding 1250 mm.
(b): Width tolerance of (+)4mm shall apply to Trim edged Cold rolled flat products of stainless steel of specified width exceeding 1000mm but not exceeding 1250mm."
So, how do you compute this "tolerance" for imposition of the Anti-dumping duty was the dispute in the present case - whether addition of 30mm tolerance to 1250mm width would also render the goods liable to Anti-dumping duty?
Read further.
The appellant filed a Bill of Entry for clearance of the goods declared as Stainless Steel Cold Rolled Coils Ex Stock Slit (Trim Edge Grade 430 BA Width 1258 MM Thk Below 4mm). The Revenue was of the view that the goods are mis-declared with regard to the characteristic of the goods and in terms of Notification No. 14/2010- Cus dated 20.02.2010 read with the Notification No. 86/2011-Cus dated 06.09.2011, Sl. No. 22, the appellants are required to pay anti-dumping duty. Therefore, proceedings were initiated against the appellants.
Resultantly, the goods were confiscated, Anti-dumping duty and redemption fine were demanded and penalty was also imposed on the appellant, its firm and its proprietor.
Before the CESTAT the appellant submitted that on a similar set of facts, in the case of Mascot International the Bench had held that the appellants are not liable to pay anti-dumping duty in terms of Notification No. 86/2011-Cus and the appellants were allowed to re-export the goods.
The Revenue representative submitted that there is mis-declaration of the goods i.e the importer has declared the goods as "Trim Edge" whereas on inspection it was found as "Mill Edge". Moreover, as per the Notfn. No. 14/2010-Cus as amended by 86/2011-Cus, the appellants are required to pay anti-dumping duty as the goods are within the tolerance limit of the said Notification.
The Bench extracted the findings of the Tribunal given in the case of Mascot International and observed -
"8. As submitted by the learned A.R. that the tolerance of (+) 30 MM is to be given to the maximum limit of 1250 mm is not acceptable to us because if it was intent of legislature that if tolerance was given to the maximum limit of width 1250 MM then Notification should have clearly spelt the exceeding limit 1000 and not exceeding 1280 MM. The same was not done. Further, we also find tolerance is given to the product not to the limits. As the tolerance in the Notification is to be added to the width actually found in the consignments i.e. product/goods. Therefore, in the case the width of the product is less than 1250 mm and the tolerance of 30 mm is added to that width and the same exceeds 1250MM, the said product shall become out of the purview of Notification 14/2010-Cus amended to Notification No. 86/2011.
9. Admittedly, in this case, the width was found to be more than 1250 MM which already is beyond tolerance limit of the Notification for attracting anti-dumping duty. Therefore, we held that in this case also the Notification No.14/2010 amended to Notification 86/2011 are not applicable. Accordingly, demand of anti-dumping duty is set aside. If the same is set aside, the question of confiscation and imposition of penalty does not arise. Accordingly, penalties are is also set aside. As the appellants have not violated the provisions of Customs Act, re-export of the goods is allowed."
The appeals were allowed with consequential relief.
In passing: Can we not have simpler notifications?
(See 2013-TIOL-1628-CESTAT-MUM)
