Page 226 - ELT_1st July 2020_Vol 373_Part 1

136 EXCISE LAW TIMES [ Vol. 373

• 1999 (110) E.L.T. 118 (S.C.) - Chhotabhai Jethabhai Patel & Co. v. Union
of India
• 2005 (188) E.L.T. 129 (S.C.) - R.C. Tobacco P. Ltd. v. Union of India.
4. We have heard both the sides and perused the record. We find that
the entire case is based on interpretation of Rule 21 of Customs Tariff (Identifica-
tion, Assessment and Collection of Anti-dumping Duty on Dumped Articles and
for Determination of Injury) Rules, 1995 issued vide Notification No. 2/95-Cus.
(N.T.), dated 1st January, 1995. Which is reproduced below :-
21. Refund of duty. - (1) If the Anti-dumping duty imposed by the Cen-
tral Government on the basis of the final findings of the investigation con-
ducted by the designated authority is higher than the provisional duty al-
ready imposed and collected, the differential shall not be collected from the
importer.
(2) If, the Anti-dumping duty fixed after the conclusion of the investiga-
tion is lower than the provisional duty already imposed and collected, the
differential shall be refunded to the importer.
(3) If the provisional duty imposed by the Central Government is with-
drawn in accordance with the provisions of sub-rule (4) of Rule 18, the pro-
visional duty already imposed and collected, if any, shall be refunded to the
importer.
4.1 From the plain reading of the above Rule 21(1) it is clear that in case
where the Central Government has imposed Anti-dumping duty on provisional
basis and at the time of finalization if the Anti-dumping Duty is fixed on the
higher side then the differential duty shall not be collected from the importer. In
the present case though as per provisional Notification No. 106/2006-Cus., the
lower Anti-dumping duty was imposed and by Final Notification No. 88/2007-
Customs, the rate of Anti-dumping duty was higher, the provisional Anti-
dumping duty was very much considered in the Bills of Entry filed by the appel-
lant and since the price declared by the appellant in the Bill of Entry was not
lower than the Anti-dumping value the Anti-dumping duty shown in the Bills of
Entry is ‘nil’. In this case it is very clear that at the time filing of Bills of Entry
there was Anti-dumping duty imposed and since the Anti-dumping duty arrived
at is zero, there was no need of any payment on assessment of Bills of Entry.
5. In our considered view there is cleared imposition and collection of
Anti-dumping duty at the time of assessment of Bill of Entry. Moreover, as per
our interpretation if there is any difference between the rate of Anti-dumping
duty in the provisional notification and final notification the differential amount
of Anti-dumping duty shall not be collected, therefore, only because in the appel-
lant’s case at the time of assessment there was ‘nil’ Anti-dumping duty, the dif-
ferential Anti-dumping duty as per the Final Notification cannot be demanded.
Somewhat similar issue has been considered by the Hon’ble Supreme Court in
the case of G.M. Export (Supra) wherein the Hon’ble Supreme Court observed as
under :-
“45. Rule 21(1) also answers the contention of the revenue that the object
of anti-dumping laws would be defeated if it were found that dumping and
material injury having been found, yet no anti-dumping duty can be levied.
By application of this Rule, it is clear that for the period that the provisional
duty notification is in force, the difference of Rs. 50% in the example just
EXCISE LAW TIMES  1st July 2020  226