Page 225 - ELT_1st July 2020_Vol 373_Part 1

2020 ] HARSH COMMODITIES PVT. LTD. v. COMMISSIONER OF CUSTOMS, KANDLA 135

cause notice for the differential duty of Anti-dumping Duty and the same was
confirmed vide adjudication order dated 28-11-2008 and the same was upheld by
the Learned Commissioner (Appeals). In the impugned order and original order,
both the lower authorities have interpreted Rule 21 of Customs Tariff (Identifica-
tion, Assessment and Collection of Anti-dumping Duty on Dumped Articles and
for Determination of Injury) Rules, 1995. According to which if there is a provi-
sional levy and collection of Anti-dumping duty and after investigation conduct-
ed final duty is higher than the provisional duty, the differential shall not be col-
lected from the importer. The lower authority contended that since in the present
case, there was no collection of duty as same was nil Rule 21(1) shall not apply,
accordingly, higher duty is liable to be paid by the appellant. Being aggrieved by
the impugned orders, the appellant filed the present appeal.
2. Shri S.J. Vyas, Learned Counsel appearing on behalf of the appellant
submits that as per the Bill of Entry there is no doubt that the Anti-dumping du-
ty was also assessed and since the appellant have declared the value which is
equal to the Anti-dumping duty, the ‘nil’ duty was assessed. Therefore, it cannot
be said that there was no provisional levy of duty and collection thereof. There-
fore, the Rule 21 (1) is clearly applicable in the present case. He placed reliance
on the following judgments :-
• G.M. Export - 2015 (324) E.L.T. 209 (S.C.)
• Merchem Ltd. - 2014 (5) TMI 523-CESTAT, Bangalore = 2014 (300)
E.L.T. 81 (Tri. - Bang.)
3. Shri Vinod Lukose, Learned Superintendent (Authorized Repre-
sentative) appearing on behalf of the Revenue reiterates the finding of the im-
pugned order. He submits that since the appellant did not pay any Anti-
dumping duty at the time of Bill of Entry Assessment there was no collection of
duty hence, Rule 21(1) is not applicable. The said Rule is applicable only in the
case when on the provisional basis Anti-dumping duty is collected. Therefore,
the demand of Anti-dumping duty is rightly collected. He placed reliance on the
following judgments :-
• 2008 (228) E.L.T. 78 (Tri.-Mum.) - ITI Ltd. v. CC ACC, Mumbai
• 1997 (94) E.L.T. 8 (S.C.) - CCE, Bhubaneshwar v. Re-Rolling Mills
• 1996 (86) E.L.T. 460 (S.C.) - Union of India v. Jain Shudh Vanaspati Ltd.
• 2007 (211) E.L.T. 505 (Tri.-Chennai) - Sandur Manganese & Iron Ores
Ltd. v. CC, Chennai
• 2006 (199) E.L.T. 405 (Mad.) - Venus Enterprises v. CC, Chennai
• 2007 (209) E.L.T. A61 (S.C.) - Venus Enterprises v. Commissioner
• 2008 (222) E.L.T. 321 (S.C.) - Assistant Director of Mines & Geology v.
Deccan Cements Ltd.
• 2005 (186) E.L.T. 3 (Raj) - J.K. Industries Ltd. v. Union of India
• 2010 (253) E.L.T. 734 (Ker.) - CC v. Akash Trading Co.
• 1999 (112) E.L.T. 749 (S.C.) - Motiram Tolaram v. Union of India
• 2002 (139) E.L.T. 3 (S.C.) - CCE, Vadodara v. Dhiren Chemical Indus-
tries
• 2010 (253) E.L.T. 35 (Tri.-Del.) - Auro Textile v. CCE, Chandigarh

EXCISE LAW TIMES  1st July 2020  225