By TIOL News Service

MUMBAI, NOV 29, 2016: THIS is a Revenue appeal.

Sr. no. 9 of Anti-dumping Notification 82/2008-Cus dated June 27, 2008 is extracted below -

Table

The original authority after examining four bills of entry came to the conclusion that serial no. 10 was applicable and ADD of Rs.41,06,880/- should be recovered as the goods had been exported from China and by M/s Joyson Ceramic Material Company who was to recover payment from the importer M/s RAK Ceramics India Pvt. Ltd, and that mere mention of M/s Ableace on the documents as indenting agent would not suffice for entitling the imported goods to exemption mentioned in sl. No. 9.

The Commissioner(A) was satisfied that the routing mapped out in the notification supra at serial no. 9 was sufficiently demonstrated as to be eligible for the exemption from anti-dumping duty. The primary ground for this conclusion was the impossibility of existence of two exporters in any given transaction and that the dispatch of goods by M/s Ableace from China or by M/s Joyson Ceramic Material Company Ltd from China with a reference to the other entity in the documentation would conform to the exporter condition in sl. No. 9.

The AR submitted that only producers and exporters can apply for 'new shipper review' and the inclusion of M/s Ableace in the notification can only be in the capacity of an exporter, that the notification clearly indicates M/s Ableace as exporter with notable omission of that status in the bills of entry, that the designated authority in the review did take into account the practice of invoicing by M/s Joyson Ceramic Material Company on M/s Ableace even if goods are shipped directly by the former, that no invoice has been produced evidencing that M/s Ableace is an exporter of the goods under dispute, that in the absence of such back-to-back transactions sl. No. 10 will apply.

The Bench observed -

+ It is the contention of Revenue that conformity to sl. No. 9 of the notification mandates production of invoice issued by M/s Ableace, Malaysia and payment being effected by importer to the Malaysian entity who may thereafter tender payment to the entity in China. We do not find any such express condition in the said notification.

+ There is no dispute as to the description, origin and producer of the goods. The goods under reference are 'vitrified tile' originating in Peoples' Republic of China and manufactured by M/s Foshan Chan Cheng Jin Yi Ceramic Co. Ltd. The dispute is restricted to the compliance with condition of exporter combination in the context of the duality expressed therein.

+ Common parlance usage compel us to perceive the transaction from the perspective of the importer; probably, there is a justification to do so as the duty in dispute is leviable on imported goods. An importer contracts with its supplier and, being a sale contract, it finds one entity at each end of sale and purchase. Likewise, place of export cannot be in plural and any other location before arrival can only be transshipment points.

+ Patently, exclusion of one of the two entities listed in the exporter's claim would shift the pertinent duty to sl. No. 10; both are required to be associated with the import transaction to be entitled to 'nil' rate of anti dumping duty.

+ Therefore, there is no basis for Revenue to contend that the exemption is applicable only if the import originates from M/s Ableace; for if that were to be so, there is no role whatsoever for the exporter in China in the transaction between M/s RAK Ceramics Pvt. Ltd and M/s Ableace. Implicitly, the transaction between M/s Joyson Ceramic Materials Co. Ltd and the importer in India has to be placed through M/s Ableace to be exempted from anti-dumping duty. Without this structuring, the international practice in documentation of shipping cannot also be complied with.

Holding that the impugned order allowing the benefit of exemption from anti-dumping duty is legal and proper, the Revenue appeals were dismissed.

(See 2016-TIOL-3085-CESTAT-MUM)