Cus - ADD on SS coils upto width 1250 mm -upon mid-term review, tolerance level fixed of 30 mm - since width of imported goods is between 1251 mm to 1280 mm, ADD is payable: SC
By TIOL News Service
NEW DELHI, JULY 08, 2017:
Facts:
Vide Notification No. 14/2010-Cus. dated 20.02.2010, anti-dumping duty was imposed by the Central Government on cold-rolled flat products of stainless steel of width of 600 mm up to 1250 mm of all series with a thickness of upto 4 mm.
A mid-term review was conducted at the instance of the indigenous industry and in the representation it was pointed out that the designated authority had restricted the width of the subject goods in the original investigation to 1250 mm; that while doing so, no tolerance was prescribed; that no engineering product can be produced to the exact dimensions without any tolerance. It was further pointed out that in the absence of any tolerance in the recommendations and in the customs notification, the products of width 1250 mm or lower are being declared as having width of 1251 mm to 1300 mm and thereby anti-dumping duty is circumvented .
Resultantly, Notification 86/2011-Cus dated 06.09.2011 was issued prescribing the tolerance limits in the following manner:
"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 1250mm.
(b) width tolerance of (+) 4 mm shall apply to rim edged cold rolled flat products of stainless steel of specified width exceeding 1000mm but not exceeding 1250mm."
In the present case, the respondent had imported two consignments of Stainless Steel Cold Rolled coils Grade 430 as stock lot. The width of the goods was declared as above 1255 MM. The goods were classified by the importer under CTH 7219 3590. The country of origin was declared Taiwan. On suspicion that Anti-dumping duty might be leviable in terms of Notification 14/2010-Cus read with 86/2011-Cus dated 06.09.2011, the matter was taken by the SIIB (Import) for investigation. Adjudication proceedings resulted in confirmation of the demand of anti-dumping duty of Rs.72,36,659/- along with imposition of interest and equivalent penalty.
While allowing the appeal of the importer, t he CESTAT, Mumbai held thus -
| Cus - Anti-dumping duty - Stainless Steel Cold Rolled coils - Notfn. 14/2010-Cus - amending Notification 86/2011-Cus dt. 6/9/2011 on mid-term review was for the consignment wherein the actual width is less than 1250 MM but who declared the consignment as 1251 MM or more to escape anti-dumping duty - in those cases tolerance of (+) 30 MM was granted - therefore, tolerance is to be applied on the products having width less than 1250 MM and declared as 1251 MM to 1300 MM - It is not the intent of the Designated Authority to levy duty on 1280 MM - If it was so, in the Notification it would have been declared that the product up to 1280 MM are leviable for anti-dumping duty - Admittedly, the width of the product on physical examination was found between 1256 MM to 1259 MM - as width is more than 1250 MM, Notfn. 14/2010-Cus as amended by 86/2011-Cus is not applicable to the appellant - question of levy of anti-dumping duty on the goods imported by the appellant does not arise - Demand not sustainable - appeal allowed with consequential relief: CESTAT [paras 10, 11 & 12] |
Please see 2013-TIOL-1426-CESTAT-MUM .
Against this order, the Commissioner of Customs had filed Civil Appeal before the Supreme Court and the following substantial question of law was framed -
"Whether Anti Dumping Duty is applicable on flat roll product of stainless steel having width between 1250 mm to 1280 mm under Notification No. 14/2010-Cus., dated 20.02.2010 as amended by Notification 86/2011-Cus, dated 06.09.2011?"
The Supreme Court observed -
CIVIL APPEAL NO(S). 10483/2013
"6. From the narration of facts, particularly mid term review culminating in Notification dated 06.09.2011, it becomes clear that tolerance level of + 30 mm is to be taken into account. In this manner, if the width is between 1251 mm to 1280 mm, the anti dumping duty would be payable as per the Notification. The learned counsel for the respondents could not dispute that the imports are of the period after the issuance of the Notification dated 06.09.2011 and the width of their product was between 1251 mm to 1280 mm. These imports were, therefore, clearly liable for anti dumping duty. The CESTAT while deciding the appeal in favour of the respondents did not consider the impact of review Notification dated 06.09.2011 in its proper prospects as indicated above. Accordingly, the appeal is allowed and the order of the CESTAT is set aside with no order as to cost."
CIVIL APPEAL NOS. 2407-2408/2014
In the aforesaid appeals, since the question of law is the same, the judgment of the CESTATwas held to be unsustainable.
Nonetheless, the respondents pointed out that the goods sought to be imported were not cleared and were re-exported and, therefore, the question of payment of any anti dumping duty would not arise.
Observing that the CESTAT had taken into consideration the above facts while setting aside the demand of anti-dumping duty and rightly allowed the appeal of the respondents, this Revenue appeal was dismissed.
(See 2017-TIOL-239-SC-CUS)
