Page 227 - ELT_1st July 2020_Vol 373_Part 1

2020 ] HARSH COMMODITIES PVT. LTD. v. COMMISSIONER OF CUSTOMS, KANDLA 137

given, cannot be collected from the importer despite Rs. 50% having been
imposed because of dumping and material injury to the domestic industry.
Therefore, it is dear that there already exists, within the scheme of the anti-
dumping law, a situation in which there is dumping and material injury to
the domestic industry, for which an anti-dumping duty is levied, but which
cannot be collected, There is, therefore a balance struck between material
injury to the domestic industry and retrospective levy of duty in favour of
the latter”.
5.1 In view of the above judgment the higher Anti-dumping duty, if
any arise due to different in the rate fixed in the provisional notification and final
notification, the same is not payable by the importer. In an identical case of Mer-
chem Ltd. (supra), this Tribunal taken the following view :-
Heard both sides. The applicant filed this application for waiver of pre-
deposit of duty of Rs. 10,82,700/- along with interest.
2. The contention is that applicant made import of rubber chemicals CBS
from China during the period 24-5-2008 to 29-12-2008 and the same were
cleared on payment of appropriate duty. During the period of import as per
Notification No. 61/2008-Cus. the rate of anti-dumping duty was ‘nil’. Sub-
sequently vide Notification No. 133/2008, dated 12-12-2008 anti-dumping
duty was finally imposed on the product in question at the rate of 40.10 per
k.g. Revenue is demanding duty in view of the Notification dated 12-12-
2008 on the ground that the anti-dumping duty imposed under the notifica-
tion is to be liable with effect from the date of imposition of provisional anti-
dumping duty i.e. 5-5-2008. The contention of applicant is that during the
import the anti-dumping duty as per the notification was ‘nil’. Hence de-
mand is not sustainable. Applicant relied upon provisions of Rule 21 of
Customs Tariff (Identification, Assessment and Collection of Anti-dumping
Duty on Dumped Articles and for Determination of Injury) Rules, 1995 to
submit that if there is an increase of anti-dumping duty on the basis of final
findings and in respect of the goods imported duty already imposed and
collected, the differential is not leviable. Hence the demand is not sustaina-
ble.
3. Revenue reiterates the findings of the lower authority.
4. We find as per the Rule 21 of Anti-dumping Rules, 1995 prima facie appel-
lant has a strong case in their favour. The Rule provides as under :
“(1) If the Anti-dumping duty imposed by the Central Govt., on the
basis of final, findings of the investigation conducted by the desig-
nated authority is higher than the provisional duty already imposed
and collected, the differential shall not be collected from the im-
porter.
(2) If, the ADD fixed after the conclusion of the investigation is
lower than the provisional duty already imposed and collected, the
differential shall be refunded to the importer.”
In view of the provisions of the above Rule at the time of import the rate of
anti-dumping duty was ‘nil’. Therefore the pre-deposit of dues are waived
and there shall be waiver of pre-deposit and stay against recovery.
6. From the above judgment, and it’s fact that at the time of import the
Anti-dumping duty was ‘nil’, however, subsequently by the notification dated
12-12-2008 the Anti-dumping duty was imposed. In the present case also there

EXCISE LAW TIMES  1st July 2020  227