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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, VIKRAM NATH, HIMA KOHLI, JJ.
COMMISSIONER OF CUSTOMS, PUNE – APPELLANT
VERSUS
M/S BALLARPUR INDUSTRIES LTD. – RESPONDENT
CIVIL APPEAL NOS.5644-5645 OF 2021
DECIDED ON : 21-09-2021
Customs Act, 1962- Section 111 (m) – Customs Tariff Act, 1975 - Heading 3903 or 4002 - Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995 – Rule 23 – Show cause notice – Levy of anti-dumping duty, interest and penalty – Notice proposing confiscation of goods – Whether the Tribunal erred in setting aside demand of anti - dumping duty on the product ‘Styrene Butadiene Rubber’ – Product under consideration of Designated Authority was SBR of 1500, 1700 and 1900 series falling under CTH 4002.19 of the Customs Tariff Act 1975 but not goods covered by the CTH 40021100 – Tribunal has set aside decision of Commissioner of Customs on an evidently superficial evaluation of issues raised in appeals – Tribunal came to conclusion that there is no whisper of any reason in Show Cause Notice to disturb the classification claimed by importer – This finding is contrary to record – Tribunal has not looked into merits of appeals at all on facetious ground that show cause notice did not contain any basis to doubt classification of goods and that while issuing notice, adjudicating authority had not examined classification based on report of laboratory - Findings of Tribunal are contrary to record and cannot therefore be sustained - Judgment of Tribunal set aside and appeals restored to file of Tribunal for determination afresh. (Paras 11, 15, 16 and 17)
Facts of the Case:
Question of law which has been formulated in appeals is whether Tribunal erred in setting aside demand of anti-dumping duty on the product ‘Styrene Butadiene Rubber’ (SBR) classified under heading 4002 of the First Schedule of the Customs Tariff Act, 1975 and imported from Korea - Allegation in the Show Cause Notice that respondent misdeclared its goods as ‘Lutex - 701’ which on tests were found to be SBR of 1900 series on which anti-dumping duty was leviable. The notice proposed to confiscate the goods imported - Commissioner of Customs, by orders held that goods were leviable to confiscation in terms of Section 111(m) of the Customs Act 1962 - Tribunal allowed the appeals stating that 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 anti-dumping investigation at any stage and further 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 –Hence this Appeal
Finding of the Court:
Since the Tribunal has not considered the case of the respondent in appeal on merits, we are of the considered view that it would be appropriate to restore the proceedings back to the Tribunal for the purpose. In order to facilitate a fresh decision on remand, we have recorded the broad submissions of the contesting parties on the merits as well but leave open the matter for evaluation by the Tribunal on remand
Result: Appeals disposed of
JUDGMENT :
Dr. Dhananjaya Y. Chandrachud, J
1. Admit.
2. These appeals by the Commissioner of Customs, Pune arises from a judgment of the Customs, Excise & Service Tax Appellate Tribunal (“CESAT” or the “Tribunal”) dated 27 September 2017. The question of law which has been formulated in the appeals is whether the Tribunal erred in setting aside the demand of anti – dumping duty on the product ‘Styrene Butadiene Rubber’ (“SBR”) classified under the heading 4002 of the First Schedule of the Customs Tariff Act, 1975 and imported from Korea.
3. A show cause notice1[Show Cause Notice F.No. ICD/Pimp- C'wad/BE-737/05-06 dated 23.05.2006.] dated 23 May 2006 was issued to the respondent covering five Bills of Entry under which the product ‘Lutex -701’ was imported namely:
(2) Bill of Entry No. 500044 dated 03.05.05;
(3) Bill of Entry No. 500110 dated 13.06.05;
(4) Bill of Entry No. 500161 dated 1 7.08.05; and
(5) Bill of entry No. 500162 dated 17.08.05.”
Another show cause notice2 [F.No. ICD/Pimp-Chwd/SCN/204/06-07 dated 30.06.2006.] dated 30 June 2006, covering six Bills of Entry’ was issued to the respondent under which the product ‘Lutex – 780’ was imported. The details of the Bills of Entry are:
(2) Bill of Entry No. 500034 dated 27.04.05;
(3) Bill of Entry No. 500073 dated 24.05.05;
(4) Bill of Entry No. 500109 dated 13.06.05;
(5) Bill of Entry No. 500148 •dated 28.07.05; and
(6) Bill of Entry No. 500128 dated 29.06.05.”
4. The allegation in the Show Cause Notice dated 23 May 2006 is that the respondent mis-declared its goods as ‘Lutex – 701’ which on tests were found to be SBR of 1900 series on which anti-dumping duty was leviable. The notice proposed to confiscate the goods imported, collectively valued at Rs.1,19,16,267/- under Section 111(m) of the Customs Act 1962; to demand anti-dumping duty of Rs.10,14,101/-; besides the levy of interest and penalty. The Show Cause Notice dated 30 June 2006 alleged a similar mis-declaration of the goods declared as ‘Lutex 780’. Confiscation of the goods collectively valued at Rs.2,10,57,783/- was proposed besides the demand of anti-dumping duty of Rs.16,88,618/-, the levy of interest and penalty.
5. The Commissioner of Customs, Pune by orders dated 17 October 2006, held that:
(ii) The goods were chargeable to anti-dumping duty; and
(iii) The respondent was liable to pay interest under Section 28AB and penalty under Section 112(a) read with Section 118(a) of the Customs Act 1962.
6. Appeals were filed before the CESAT by the respondent against the decision of the Commissioner. The CESAT allowed the appeals by its order dated 27 September 2017 and came to the conclusion that the Show Cause Notices could not be sustained.
7. The Tribunal has allowed the appeals on the basis of two findings. The first finding is as follows:
Therefore there cannot be any misconception about the product under consideration. Notification no. 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
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