By TIOL News Service

MUMBAI, NOV 24, 2017: WHEN the matter came up for hearing, the Bench enquired as to whether there was any challenge to the incidence of levy of anti-dumping duty in the present appeal or whether challenge was made only against classification to attract the levy or not.

The appellant informed that classification was not being challenged, but levy of anti-dumping duty had been made under misconception of law for which the matter could be adjudicated by the Bench.

Since the Revenue did not contradict the proposition of the appellant, the matter was heard.

The Appellant submitted that the goods imported were declared as "Styrene Butadiene Co-Polymer",classified under CTH 40021100 and such goods were provisionally cleared.

Subsequently, assessment thereof was finalized by the impugned order, levying antidumping duty on such goods in terms of Notification No. 100/04-Cus, without change of classification by Revenue.

The appellant emphasized that the product under consideration by the Designated Authority was Styrene Butadiene Rubber (SBR) of 1500 series, 1700 series and 1900 series covered under CSH 4002.19 of the CTA, 1975 but not the goods covered by CTH 4002 1100;that goods of these two tariff headings being different from each other, no anti-dumping duty was leviable on the goods imported. [Rishiroop Polymers P. Ltd. v. Designated Authority & Addl. Secretary - 2006-TIOL-26-SC-AD refers]

The AR sought to justify the demand.

The Bench extracted portions from the SCN issued by the adjudicating authority while finalizing the provisional assessment, the impugned order and observed –

"9. There is no whisper of any reason in the show-cause notice to disturb the classification claimed by the appellant. Therefore, the classification of the imported declared by the appellant under CTH 40021100 remained untouched by this order. Anti-dumping notification indicates that the goods falling under customs heading Nos. 3903 and 4002 of the first schedule to the Customs Tariff Act, 1975 were subject to levy of anti-dumping duty. Accordingly, levy was confined to the goods of hearing 4002.19 since anti dumping investigation was confined to the goods covered by heading 4002.19. Therefore there cannot be any mis-conception about the product under consideration. Notification no. 100/2004-Cus dated 26.09.2004 was issued pursuant to sunset Review arising out of the final findings of the designated authority made on 02.06.1999. That Authority confined his scope of investigation into the goods covered by above tariff heading in the Sunset Review which was subject matter of levy of definitive duty…

11. It may be stated that while issuing show-cause notice, learned adjudicating authority had not examined the classification based on the report of the Laboratory. The show-cause notice issued in 2006 was to finalise the assessment only, without any proposal to levy anti-dumping duty. There was no reference to the character and nature of the imported product also therein. The Notification No. 100/2004-Cus dated 26.09.2004 does not intend to levy anti-dumping duty on the product imported by the appellant…"

In fine, both the appeals were allowed.

(See 2017-TIOL-4134-CESTAT-MUM)