1. When the matter came up on 12.09.2017 both sides were given an opportunity to explain whether there is any challenge to the incidence of levy of anti-dumping duty in the present appeal or challenge is made only against classification to attract the levy or not. It was explained by the appellant that classification is not challenged by either side, but levy of anti-dumping duty has been made under misconception of law for which the matter can be adjudicated by this Bench. Revenue does not contradict the proposition of the appellant. Both sides say that this bench has jurisdiction to hear the appeal. Accordingly both were heard. Appellant's grievance is that the goods imported by appellant declared as "Styrene Butadiene Co-Polymer" was classified under CTH 40021100 and such goods
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were provisionally cleared. Subsequently, assessment thereof was finalized by the impugned order, levying antidumping duty on such goods, without change of classification by Revenue. Also there was no proposal for change of classification in the show-cause notice, copy of which appears at page 30 of the appeal folder of C/70/2007.
2. Revenue's only grievance today is that antidumping duty having been imposed in terms of Notification No. 100/04-Cus dated 26.09.2004, in consequence of the Sunset Review by the designated authority, in terms of his final findings dated 2 nd June, 1999, antidumping duty was levied on the above said goods.
3.1 Appellant says that Sunset Review related only in respect of goods which was subject matter of initiation of levy of antidumping duty, which was levied through preliminary findings of the Designated Authority notified on 21 st January, 1999 (Ref. page 39 of the appellant's compilation) followed by the final findings of the designated authority notified on 2 nd June, 1999 (at pages 68 and 69 of the appellant's compilation).
3.2 The product under consideration by the Designated Authority was Styrene Butadiene Rubber (SBR) of 1500 series, 1700 series and 1900 series under Customs sub heading 4002.19 of the Custom Tariff Act, 1962 but not the goods covered by CTH 4002 1100. Goods of these two tariff headings being different from each other, no anti-dumping duty was leviable on the goods of the description imported as stated at the outset, through the impugned bill of entry. To support his contention, he relied on the judgment of the apex court in the case of Rishiroop Polymers P. Ltd. v. Designated Authority & Addl. Secretary : 2006 (196) ELT 129 (S.C.) holding that the goods covered by customs sub-heading 4002.19 was only subject matter of Anti-Dumping investigation and goods of no other heading. Accordingly there cannot be misconception of the law to impose an unwarranted levy on the goods imported by appellant.
4. Revenue's contention at this stage was that since appellant failed to produce any evidence before the adjudicating authority, adjudication order should not be disbursed.
5. Heard both sides and perused the records.
6. Adjudicating authority issued show-cause notice for the purpose of finalization of assessment as is apparent from para 5 thereof, which reads thus:
(a) The goods imported vide five Bills of Entry with numbers (1) 500271/18-03-05 (2) 500044/03-05-05 (3) 500110/13-06-05 (4) 500161/17-08-05 (5) 500162/17-08-05 totally valued at Rs. 1,19,16,276/- should not be confiscated under the provision of Section 111(m) of the Customs Act, 1962. However the goods have been released to the importer under Bond and are not available for confiscation and therefore why the goods in question should not be redeemed on payment of fine in lieu of confiscation in terms of Section 125 of the Customs Act, 1962.
(b) The five Bills of Entry as aforesaid should not be assessed finally on the basis of Test Repost dtd. 06.03.2006 from IRMA making the goods chargeable to the Anti Dumping Duty to the tune of ab out Rs. 10,41,101/- @ US $ 0.06879 per Kg as per Notfn No. 100/2004 dtd 28.09/2004.
(c) The interest as applicable should not charged on duty not paid at the time of clearance of goods as per provisions under Section 28AB of the Customs Act, 1962.
(d) Penalty should not be imposed on M/s Ballarpur Industries Ltd, Pune under section 112 (2) of the Customs Act, 1962.
7. After examining pleading of the appellant, learned adjudicating authority in paragraph 7.9 of his order reached to the following findings:-
(a) Lutex 701, covered under the 5 Bills of Entry, collectively valued at Rs. 1,19,16,267/-, as referred to in the First Notice, are held to be liable for confiscation under Section 111(m) of the said Act;
(b) similarly, Lutex 708, covered under the 6 Bills of Entry, collectively valued at Rs. 2,10,57,783/-, as referred to in the Second Notice, are held to be liable for confiscation under Section 111(m) of the said Act;
(c) further, Lutex 701, imported under the 5 Bills of Entry covered in the First Notice, is chargeable to Anti Dumping duty, in terms of the said Notification and an amount of Rs. 10,14,101/- towards the same is, therefore, recoverable from the said Importer in terms of Section 28 of the said Act;
(d) Lutex 780, imported under the 6 Bills of Entry covered in the Second Notice, is chargeable to anti dumping duty in terms of the said Notification and an amount of Rs. 16,88,618/- towards the same is, therefore, recoverable from the said importer in terms of Section 28 of the said Act;
(e) the said Importers are also liable to pay interest at the applicable rate in terms of Section 28 AB of the said Act on the aforesaid amount of anti dumping duty; and
(f) the said Importer is also liable for penalty under Section 112 (a) read with Section 114A of the said Act.
8. 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. Therefore pleading of the appellant that its goods having fallen under CTH 40021100 does not come under CTH 40021900 for levy of anti dumping duty for the reason that goods of CTH 4002 1100 were not subject matter of antidumping investigation at any stage.
9. Revenue's submission that the appellant did not plead as above before the learned adjudicating authority is untenable as a litigant can raise question of law at any stage of proceeding till conclusion thereof. 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. Accordingly, the show cause notice having no basis, both the appeals are allowed