Date of presentation of Bill of Entry is relevant for determining rate of duty

Increase in Anti-Dumping duty after filing of Bill of Entry cannot be made applicable as the date of presentation of Bill of Entry is the relevant date for determining the existing rate of duty

Sunrise Enterprise (the Appellant) imported Global Star Brand Tyres, Tubes and Flaps (imported goods) falling under Chapter 40 of the First Schedule to the Customs Tariff Act, 1975 (the Customs Tariff Act) from Peoples Republic of China and Thailand and filed 3 Bills of Entries, one dated July 11,2007 and two dated July 12,2007.

The imported goods were leviable to provisional Anti-Dumping duty in terms of Notification No. 106/06-Customs dated October 9, 2006 (the Notification), at the rate which was equivalent to the difference between the reference price as specified in the duty table appended to the Notification and the landed value of imported goods. Since the landed value of imported goods in all the 3Bills of Entries was higher than the reference price, imported goods were assessed to Customs duty of around Rs. 4 Lakhs each and Anti-Dumping duty was zero in each case. The assessment was completed by the Customs appraisal on July 19, 2007 and July 20,2007 and the duty was duly discharged by the Appellant on July 23,2007.

Later, the Notification was amended by Notification No. 88/2007-Customs dated July 24, 2007 (New Notification) and thereby revising the reference price from the earlier reference price specified in the Notification. As the value of imported goods was less than the reference price, the Revenue recalled the Bills of Entries, assessed the same imposing Anti-Dumping duties amounting to Rs. 2,37,075/-.

Being aggrieved, the Appellant preferred an appeal before the Hon’ble Commissioner (Appeals)contending that since the assessment were finalized before the issuance of New Notification, it was not permissible to the Assessing Officer to recall the Bills of Entries and to reassess the same.

The Hon’ble Commissioner (Appeals) rejected the appeal and held that the final assessment has to be done by the Assistant Commissioner of Customs and merely because the Appellant had deposited the duty before the final assessment (i.e., 27^th,28^th and 29^th August, 2007) the same cannot be considered as duty collected by the Revenue in terms of Rule 21 of the Customs Tariff (Anti Dumping Duty on Dumped Article) Rules, 1995. Being aggrieved, the Appellant preferred an appeal before the Hon’ble CESTAT, Delhi.

The Hon’ble CESTAT, Delhi held as under:

• In terms of the Finance Act, 2009, Section 9A(8) of the Customs Tariff Act under which Anti-Dumping duty is leviable was amended retrospectively (from January1,1995) pursuant to which the provisions of the Customs Act, 1962 (“the Customs Act”) relating to the date for determination of rate of duty will apply to duty chargeable under Section 9A(8) of the Customs Tariff Act as they apply in relation to the duties leviable under the Customs Act;
• In terms of Section 15(a) of the Customs Act, the date of presentation of Bill of Entry is the relevant date for determining the rate of dutyand Section 15(a) of the Customs Act will apply to Anti-Dumping duty with retrospective effect, in terms of Section 9A(8) of the Customs Tariff Act;

Therefore, the Hon’ble Tribunal decided the matter in favour of the Appellant and held that the New Notification has no applicability to the Bills of Entries presented prior to the date of issuance of the New Notification.

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