By TIOL News Service

MUMBAI, NOV 13, 2014: THE appellant purchased 10.5 MT Phosphoric Acid from Desmo Export Ltd. out of the total quantity of 110.25 tons of Phosphoric Acid imported and warehoused under bill of entry dated 25.04.2013. The said goods were assessed and anti-dumping was imposed under Notification 19/2012-Cus dated 04.04.2012. The appellants filed ex-bond bill of entry on 09.05.2013 and claimed the benefit of Notification no.98/2009 dated 11.09.2009 based on the valid DFIA dated 21.05.2012, which was transferred in the name of the appellant as per the provisions of the Foreign Trade Policy on 09.04.2013.As per the said DFIA, the appellant were allowed import of goods of the quantity and value mentioned therein without payment of duties of customs including Anti-Dumping Duty within the validity period of 36 months.

Vide Notification 2 (RE-2013) dated 18.04.2013 various provisions of the FTP were amended including exemption from payment of Anti-dumping Duty under DFIA. As per the said Notification, Anti-Dumping Duty and Safeguard duty would be leviable on goods imported against transferred DFIA. Consequently, Customs Notification 98/2009 was amended through Notification 24/2013 dated 18.04.2013 to give the effect of said Notification. Notification No.45/13 dated 17.09.2013 made further amendment to notfn.98/2009-Cus and as per the said Notification w.e.f.17.09.2013 exemption from safeguard duty and Anti-Dumping Duty shall not be available in case materials are imported against an authorisation that has been made transferable on or after 18.04.2013 by the Regional Authority.

As the appellant were denied the exemption from payment of Anti-Dumping Duty,they are before the CESTAT.

On account of the difference in opinion between the Members, the matter was referred to the Third Member for resolving the following issues:

a) Whether Member (Judicial) is right in holding that as per the clarification by Notification No.45/2013 dated 17.09.2013, the appellant is entitled for exemption under Notification No.98/09 dated 11.09.2009;

b) Whether Member (Judicial) is right in relying on the decision of Namco Steels P.Ltd.2013 (296) ELT 68 2013-TIOL-1522-CESTAT-DEL to arrive at a decision that appellant are entitled for benefit of exemption Notification No.98/09 dated 11.09.2009;

OR

c) Whether Member (Technical) is right in holding that the appellants are not entitled for benefit of exemption Notification No.98/09 dated 11.09.2009 as amended by Notification No.24/2013 dated 18.04.2013, and the amendment made vide Notification No.45/2013 dated 17.09.2013 have no relevance to the facts of this case and the case law relied upon by the ld.counsel in the case of Namco Steels P. Ltd. have no relevance to the facts of this case as there was no amendment in the Customs Notification, amendments were only in FTP.

The Third Member on reference viz.Member (Technical) recently passed the following order and agreed with the view taken by the Technical Member of the referral Bench -

++ It is not in dispute that the appellant filed ex-bond Bill of Entry on 09/05/2013 for clearance of the goods from the warehouse.The clearance was sought to be effected under the DFIA which was transferred to the appellant on 09/04/2013. As per Section 15(1)(c) of the Customs Act, 1962, the date for determination of rate of duty and tariff value of imported goods in the case of goods cleared from a warehouse under Section 68 is the date on which the bill of entry for home consumption in respect of such goods is presented under that Section .Therefore, in the present case, the rate of duty that would apply is the rate prevalent on 09/05/2013 when the Bill of Entry for home consumption was filed.On that date when the bill of entry was filed, Notification 98/2009 clearly stated that the exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorisation made transferable by the regional authority.The said Notification does not stipulate on what date the authorisation should have been made transferable.In the absence of any specific mentioning of the date as to when the transferability should have been made, there is no merit in the contention of the appellant that the Notification stipulates 18/04/2013 as the date on which the authorisation should have been transferable.

++ It is a settled position in law that a Notification should be construed strictly, being in the nature of exception.It is also equally settled that while interpreting a Notification, no words should be read into a Notification or no words should be excluded from a Notification.The Notification should be interpreted as it is worded.[ Favourite Industries 2012-TIOL-30-SC-CX refers] Therefore, when the bill of entry was filed, if the authorisation has been made transferable, then the benefit of exemption from safeguard duty and anti-dumping duty shall not be available.This is the plain and simple reading of the Notification.

++ Notification No.45/2013-Cus.dated 17/09/2013clearly stipulates that w.e.f.17/09/2013, the exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorisation which has been made transferable on or after 18/04/2013.In other words, Notification 45/2013 takes effect only on 17/09/2013 and not prior to that .Therefore, it cannot be said that Notification 45/2013 is a clarificatory Notification.If that be so, there was no need to specify the words "with effect from 17/09/2013".Therefore, the argument that the Notification should be given effect to retrospectively does not stand to any logic or reason.

++ As regards the contention that there will be inequity if Notification 45/2013-Cus (NT) is not treated as clarificatory this argument is not acceptable as it is a settled position in law that in interpreting a taxing statute, equitable considerations are entirely out of place.[ Sales Tax Commissioner vs.Modi Sugar Mills AIR 1961 SC 1047 P.1051 refers].

++ Since the wordings of the Notification are clear and unambiguous, no extra support or aid is required for interpreting the Notification.In this view of the matter, I am of the view that the appellant is not eligible for the benefit of exemption from safeguard duty and anti-dumping duty in respect of ex-bond bill of entry filed on 09/05/2013.

And so, the Majority decision is that the appeal is dismissed.

(See 2014-TIOL-2259-CESTAT-MUM)