[2017] 6 S.C.R. 331

COMMISSIONER OF CUSTOMS (EXPORT) NHAVA SHEVA A

M/S. MASCOT INTERNATIONAL

(CivilAppealNo.10483 of2013)

JULY03, 2017

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Anti dumping duty - Flat roll product of stainless steel - Respondent imported the subject goods and the width thereof was more than 1250 mm but less than 1300 mm - Claim for exemption C from payment of anti dumping duty under Notification No. 14120 I 0-

Cus., dated 20.02.2010 as amended by Notification 8612011-Cus, dated 06.09.2011 - Held: Jn terms of Notification dated 06.09.2011 if width is between 1251 mm to 1280 mm, the anti dumping duty is payable - However, where goods sought to be imported were not cleared and were re-exported, the question of anti dumping duty D would not arise - Notification No. 1412010-Cus., dated 20.02.2010 and Notification 86/2011-Cus, dated 06.09.2011.

Disposing of the appeals, the Court

HELD: 1. In view of Notification dated 06.09.2011, tolerance level of + 30 mm is to be taken into account. In this manner, if the width is between 1251 mm to 1280 mm, the anti dumping duty would be payable as per the Notification. The imports were of the period after the issuance of the Notification dated 06.09.2011 and the width of their product was beten .1251 mm to 1280 mm. These imports were, therefore, clearly liable for anti dumping duty. The CESTAT while deciding the appeal in favour of the respondents did not consider the impact of review Notification dated 06.09.2011 in its proper prospects. [Para 6] [334-C-D) '

2. In case of those goods which are sought to be imported G but are not cleared and are re-exported, the question of payment of any anti dumping duty would not arise. The CESTAT took into consideration this ground while setting aside the demand of anti dumping duty and rightly allowed the appeal of the respondents. [Para 7] (334-F]

331 H

CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 0483 of2013.

From the Judgment and Order dated 03.04.2013 of the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai, in Appeal No. C/85087/13.

WITH

C. A. Nos.2407-2408 of2014.

Maninder Singh, ASG, Ms. Nisha Bagchi, P. K. Mullick, B. Krishna Prasad, Advs. for the Appellants.

C Kuna! Verma, Yogandhera P. Jha, Ms. Priyanka Ashok, Ashish Batra, Nikhil Jain, Advs. for the Respondent.

The Judgment of the Court was delivered by

A. K. SIKRI, J.

D CIVIL APPEAL NOiS). 10483/2013

I. The following substantial question of law has arisen in these appeals for determination by this Court:

"Whether Anti Dumping Duty is applicable on flat roll product of stainless steel having width between 1250 mm to 1280 mm under Notification No. 14/2010-Cus., dated20.02.2010 as amended by Notification 86/2011-Cus, dated 06.09.2011 ?"

2. The factual matrix WHICH is required to be noted for determination of the aforesaid question is in narrow campus and, therefore, the facts which have no bearing on the aforesaid issue are F avoided. The material facts which need to be noted are that vide Notification No. 14/2010-Cus., dated20.02.2010 anti dumping duty was imposed by the Central Government on certain goods imported from some specified countries which included cold-rolled flat products of stainless steel of width of 600 mm up to 1250 mm of all series with a G thickness ofupto 4 mm and the subject matter thereof, as per the said

Notification, was as under:

"Subject: Anti-dumping (Mid-term Review) investigation limited to the product scope of definitive Anti-dumping Duty imposed on Cold-Rolled Flat Products of Stainless Steel of the width of600mm upto 1250 mm ofall series fortherworked then Cold Rolled (cold

COMMISSIONER OF CUSTOMS (EXPORT) NHAVA SHEVA v. 333

MIS. MASCOT INTERNATIONAL [A. K. SIKRI, J.]

reduced) with a thickness of up to 4 mm, originating in or exported A from China PR, Japan, Korea, European Union, South Africa, Taiwan, Thailand and USA- Final Findings."

3. This mid-term review was at the instance of the indigenious industry and in the representation submitted by it, it was pointed out that the deisgnated authority had restricted the width of the subject goods in the original investigation to 1250 mm. While doing so, no tolerance was prescribed. It is stated that no engineering product can be produced to the exact dimenions without any tolerance. It was further pointed out that in the absence of any tolerance in the recommendations and in the customs notification, the products of width 1250 mm or lower are being declared as having width of 1251 mm to 1300 mm and thereby anti dumping duty is circumvented. After detailed exercise of review, it was decided to specify the tolerance limits as well. Resultantly, Notification dated 08.06.2011 was issued prescribing the tolerance limits in the following manner:

"In the said notification in para 1 after the Table the following D shall be ipserted namely:

(a) width tolerance of(+) 30mm shall apply to Mil edged cold rolled flat products of stainless steel of specified width of I OOOmm or more but not exceeding I 250mm. .E

(b) width tolerance of(+) 4 mm shall apply to rim edged cold rolled flat products of stainless steel of specified width exceeding 1 OOOmm but not exceeding ! 250mm."

4. It becomes clear from the aforesaid that those products where the width is 1250 mm, tolerance level up to 1250 mm is to be applied meaning thereby the products' width between 1251 mm to 1300 mm were also supposed to bear anti dumping duty.

5. Insofar as the respondents herein are concerned, they had imported the subject goods and the width thereof was more than 1250

mm but less than 1300 mm. Their submission was that they were not G supposed to pay any anti dumping duty having regard to the fact that' vi de Notification dated 20.02.20 I 0 anti dumping duty is to be paid only on those steel cold rolled products of the width between 600 mm to 1250 mm. Since their contention was not accepted by the Department, these respondents preferred an appeal before the Customs, Excise & Service H

A Tax Appellate Tribunal (CESTAT). The CESTAT has allowed the appeal accepting the contention of these respondents that the Notification prescribes that stainless steel of specified width will not be exceeding

1250 mm and, therefore, the same is not applicable in the case of the respondents. Challenging that decision these appeals are filed by the

B Revenue.

6. From the narration of facts, particularly mid term review culminating in Notification dated 06.09.2011, it becomes clear that tolerance level of+ 30 mm is to be taken into account In this manner, if the width is between 1251 mm to 1280 mm, the anti dumping duty would be payable as per the Notification. The learned counsel for the C respondents could not dispute that the imports are of the period after the issuance of the Notification dated 06.09.2011 and the width of their product was between 1251 mm to 1280 mm. These imports were, therefore, clearly liable for anti dumping duty. The CESTAT while deciding the appeal in favour of the responents did not consider the impact ofreview D Notification dated 06.09.2011 in its proper prospects as indicated above.

Accordingly, the appeal is allowed and the order of the CESTAT is set aside with no order as to cost.

CNILAPPEAL NOS. 2407-2408/2014

7. In these appeals, though the question of law is same and, E therefore, the judgment of the CESTAT is unsustainable, however, the responents have pointed out that the goods sought to be imported were not cleared and were re-exported. Since the goods stand re-exported the question of payment of any anti dumping duty would not arise.

Therefore, the CESTAT has taken into consideration this ground while F setting aside the demand of anti dumping duty and rightly allowed the appeal of the respondents. This appeal is, accordingly, dismissed.

Devika Gujral Appeals disposed of.