Glass House Vs Commissioner of Customs (Appeals) (CESTAT Bangalore)
CESTAT Bangalore held that Reflective Glass not found in notification no. 4/2009 dated 06.01.2009 is not exempt from levy of anti-dumping duty. Thus, anti-dumping duty leviable on reflective glass imported from China.
Facts- The appellant M/s. Glass House filed a Bill of Entry for the clearance of “Dark Green Reflective Float Glass” which was imported from China. On examination, the officers found that as per the notification no. 4/2009 dated 06.01.2009, the imported goods were liable for anti-dumping duty, however since the appellant disputed leviability, the goods were cleared with a provisional bond. On finalisation of provisional duty, the original authority confirmed the duty amount of Rs. 1,50,649/- along with interest u/s. 18(3) of the Customs Act 1962, in view of the notification no. 4/2009 dated 06.01.2009
The Commissioner (Appeals) also confirmed the anti- dumping duty. Being aggrieved, the present appeal is filed.
Conclusion- Held that in the present case, since Reflective Glass is not found in the notification no. 4/2009 dated 06.01.2009 for exempting them from anti-dumping duty, question of extending the benefit does not arise. The Commissioner (Appeals) has rightly held that no attempt can be made to infer the motive or meaning of the Notification other than what is emanating from the plain language of the Notification.
FULL TEXT OF THE CESTAT BANGALORE ORDER
The appellant M/s. Glass House filed a Bill of Entry No. 238994 dated 12.01.2009 for the clearance of “Dark Green Reflective Float Glass” which was imported from China. On examination, the officers found that as per the notification no. 4/2009 dated 06.01.2009, the imported goods were liable for anti-dumping duty, however since the appellant disputed leviability, the goods were cleared with a provisional bond. On finalisation of provisional duty, the original authority confirmed the duty amount of Rs. 1,50,649/- along with interest under Section 18(3) of the Customs Act 1962, in view of the notification no. 4/2009 dated 06.01.2009
2. The Commissioner (Appeals) also confirmed the anti- dumping duty on the ground that there was a specific exclusion for Reflective Glass from the purview of the anti-dumping duty under Notification 165/2003-Cus. dated 12.11.2003, but notification no. 4/2009 dated 06.01.2009 there was no such exclusion for Reflective Glass. Aggrieved by this order, the appellant is before us only on the limited ground that they are not liable to pay anti-dumping duty in as much as prior and after to the notification no. 4/2009 dated 06.01.2009 as there was admittedly no anti-dumping duty and therefore, for the relevant period there appears to be an omission in the Notification in not excluding the Reflective Glass from the anti-dumping duty.
3. The learned counsel on behalf of the appellant submitted that the facts are not in dispute. The Reflective Glass imported by the appellant was in fact excluded in the Notification 165/2003-Cus. dated 12.11.2003 and Notification No. 51/2009-Cus. dated 22.05.2009 but by omission the Reflective Glass did not find place in notification no. 4/2009 dated 06.01.2009 According to the appellant, the authority for imposing anti-dumping duty on a product is the Director-General of Anti-dumping and in the final findings of the DGAD referred to subject goods falling under Heading 7005 and the subject goods included the items imported by them. Therefore, the Customs Authorities cannot exclude the item in their Notification in as much as it has not been approved by the DGAD. It is also submitted that as per the sunset final Notification findings issued by DGAD, the product under consideration remains the same as the subject goods and therefore, imposing anti-dumping duty on the items imported by them was illegal and hence, the appeal.
4. On behalf of the Revenue, the Authorised Representative for the Revenue submitted that Notification 165/2003-Cus. dated 12.11.2003 excluded Reflective Glass from its scope, however, there is no such exclusion for Reflective Glass in the Notification No.4/2009 dated 06.01.2009. The exemption Notification No. 51/2009-Cus. dated 22.05.2009 once again provided exemption to Reflective Glass and therefore, since the relevant Notification during the time of import did not provide any exemption from anti-dumping duty to the appellant. It is also submitted that the Hon’ble High Court of Kerala while deciding Writ Petition (C) No.7563 of 2009 (M) in the case of K. Kochumon vs. Union of India as reported at 2011 (273) ELT 187 (Ker.) wherein it was held that:
“6. Therefore, prima facie, I am not satisfied that the reflective glass are excluded from the description of Float Glass in respect of which anti-dumping duty has been levied. In view of this, I am not persuaded to accept the contention of the learned counsel for the petitioner that the levy of anti-dumping duty is without jurisdiction.
7. True, the learned counsel for the petitioner made reference to Exts. P11 & P12. According to him these documents would show that reflective glass, were allowed to be imported in certain other ports in the country without levying anti-dumping duty. This Court can be guided only by the description of the commodity as available in the notification and even if there has been any omission on the part of the Department in levying duty at any place that will not justify interference levy of duty, if it is otherwise legal. Therefore, this court will not be justified in granting any relief in the writ petition and it is accordingly dismissed. However, it is clarified that the findings in the judgment will not stand in the way of the petitioner agitating his liability before the appellate Forum that is available under the statute, which, shall decide the matter untrammelled by any of the observations made above.”
In view of the above, the Revenue prayed that the appeal should be dismissed.
5. Heard both sides. The limited issue to be decided is whether the importer is eligible for the benefit of exemption from anti- dumping duty during the relevant period i.e., from 06.01.2009 to 05.2009. To understand the issue let’s examine the Notifications that are relevant to the issue. Notification 165/2003-Cus. dated 12.11.2003 reads as:
