Per: P.R. Chandrasekharan: There are 10 appeals arising out of 4 Orders-in-Originals, two of them passed by Commissioner of Customs (Imports), Mumbai, the third passed by Commissioner of Customs (General), Mumbai and the fourth passed by Commissioner of Customs (Imports), Nhava Sheva.
2. The appellants are M/s. Samay Electronics Pvt. Ltd., M/s. Wipro Limited, M/s. Amar Energy Systems, M/s. Shell & Pearl Ceramics Ltd., M/s. Sunora Electronics Industries and their partners/employees. The issue involved in all these appeals is common and it relates to levy of anti dumping duty on Compact Fluorescent Lamps (CFL) imported from China in SKD form and in different consignments and at different ports. The facts involved in each of these cases are discussed below:- (1) Samay Electronics Pvt. Ltd.: During the period from November 2004 to February 2007, M/s. Samay Electronics Pvt. Ltd. (Samay in short) had imported 106 consignments of CFL from China in SKD form without payment of anti dumping duty leviable on CFL vide Customs Notification No. 138/2002-Cus dated 20/12/2002. (a) As part of the investigation, officers of the DRI, Ahmedabad visited the office and factory premises of M/s. Samay on 28/11/2006. During the visit, it was found that M/s. Samay was importing glass tubes with base from China at Kandla port and holders with wire and populated PCBs for CFL at Mumbai. The CFLs were being assembled at their factory by soldering the above goods. All the components put together constituted CFL in SKD form and as per Rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975, the same merited classification as CFL under CTH 8539 3110 and not as components of CFL under CTH 8539 9010 as claimed by the appellant. During the investigation 158257 pieces of CFL of different watts in SKD condition was seized by the officers under a panchanama dated 28/11/2006 as it appeared that the same were liable confiscation. (b) Statements of Shri Vasantbhai Chunibhai Patel, Chief Engineer of M/s. Samay was recorded on 08/12/2006, 10/01/2007 and 20/04/2007 wherein he stated that they had assembled the CFL by soldering the glass tubes with base imported at Kandla and holders with wire and populated PCBs imported at Mumbai and they had not used any other material other than the above imported components. He also confirmed that Shri Rameshbhai Patel, Director of the appellant firm, managed the imports of components of CFL and he had accompanied Shri Rameshbhai Patel on his visit to China for the purpose of import of components of CFL. He also confirmed that no written contracts were made and only verbal orders were given at the time of negotiations with the suppliers. In his statement given before the investigating agency on 04/01/2007 and 14/05/2007 Shri Rameshbhai Patel, Director of the appellant-firm stated that they were importing components of CFL and for that purpose, he had visited China and placed orders with various manufacturers namely, M/s. Fuijian Lijia Electrical Appliance Co. Ltd., M/s. International Lighting City Zhongshan Co. Ltd., and M/s. Zhejiang Province Machinery & Equipment Complete Co. Ltd. He also confirmed that, while assembling the above components, only soldering of wires of tube and holder was done in their factory and thereafter, testing was undertaken. (c) Examination of the documents seized during investigation revealed that various were exchanged between M/s. M/s. Samay and suppliers with an intention to evade anti dumping duty and for that purpose M/s. Samay imported the holders fitted with wire and populated PCBs at Mumbai port and glass tubes with base at Kandla Port at very short intervals and declared them as components of CFL. From the invoices issued by the suppliers, it was found that the entire CFL in SKD condition were being supplied under the same number and date of the invoice. However, a suffix to the said invoice number was made with suffix M for imports through Mumbai port and suffix K for imports made through Kandla port. However, the numbers and dates of the invoices were one and the same in respect of both the supplies. It was found that the appellant had imported 723560 numbers of CFL from Fuijian Lijia Electrical Appliance Co. Ltd., Fuijian, China and 540600 pieces of CFL from Zhejiang Province Machinery & Equipment Complete CO. Ltd., China and 6685125 pieces of CFL from M/s. International Lighting City Zhongshan Co. Ltd., Guangdong Province, China by mis-declaring these items under import as components of CFL. They had thus evaded anti dumping duty amounting to ` 79,40,69,516/-. (d) On completion of the investigation, a show cause notice dated 23/05/2007 was issued seeking to classify the goods under CTH 85393110 as CFL as against the classification done by the appellant at the time of importation under CTH 8539 9010 as parts of CFL, by applying Rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975 and demanding anti-dumping duty along with interest thereon and also proposing confiscation of the goods under Section 111(m). The notice also proposed imposition of equivalent amount of penalty under Section 114A of the Customs Act, 1962 on the appellant- importing firm and also on the Director Shri Rameshbhai Patel. (e) The said notice was adjudicated vide order dated 13/06/2008. The goods seized during the investigation consisting of 158257 pieces of CFL in SKD condition was confiscated with an option to redeem the same on payment of fine of Rs. 25 lakhs. Further the entire quantity of 7556708 pieces of CFL in SKD condition imported were also confiscated with an option to redeem the same on payment of fine of ` 9 crore. Anti-dumping duty of Rs.76,97,68,897/- was confirmed along with interest thereon and equivalent amount of penalty was also imposed on M/s. Samay under Section 114A and a penalty of Rs. 1 crore was imposed on Shri Ramesh Patel, Director of M/s. Samay under Section 112(a) ibid. (2) M/s. Wipro Limited: It was found that during the period May 2004 to October 2005, M/s. Wipro Limited had imported as many as 20 consignments of CFL in SKD form declaring them as parts of CFL with an intent to evade anti-dumping duty thereon. One such consignment was intercepted which was covered by Bill of Entry No. 613150 dated 13/10/2005 and the consignment was found to contain 36050 pieces of sealed glass tubes, 35000 pieces each of plastic lamp base and PCBs of 15 watts. The three items when assembled together formed 35000 units of CFL by merely soldering of wires and therefore, the department was of the view that by applying Rule 2(a) of the General Interpretative Rules, the goods merited classification as CFL attracting anti-dumping duty. However, pending settlement of the dispute the goods were allowed to be cleared provisionally on execution of bond and bank guarantee. (a) The investigation revealed that the appellant, M/s. Wipro Ltd. had placed common purchase orders for import of three items namely, (i) sealed glass tubes; (ii) ballasts (i.e. PCBs) and (iii) plastic housing of matching quantity. However, separate LCs were opened for each category of goods covered by the common purchase order. The goods were imported under separate commercial invoices under different bills of lading on different dates but in sequence. The invoices were consecutively numbered in a set of three and each set was issued on the same date. The goods sold under each set were meant for CFL of the same type and wattage. Thus all the consignments of identical quantities were imported in the same manner. It, therefore, appeared that kits of CFLs of 11 watts, 15 watts and 20 watts were imported in semi-knocked down condition by mis-declaring the same as parts of CFL. (b) Accordingly, a show cause notice was issued for recovery of anti-dumping duty and in adjudication the adjudicating authority held that all the goods imported under 20 Bills of Entry in SKD condition are classifiable under CTH 8539 3110 attracting anti-dumping duty. The adjudicating authority also imposed penalty of equivalent amount on the importer, M/s. Wipro Limited under Section 114A. The goods covered by all the Bills of Entry were confiscated with an option to redeem the same on payment of fine of Rs. 41 lakhs. A penalty of Rs.2 lakhs was imposed on Shri Dilip Basole, Vice President (Commercial) of the appellant-firm under Section 112(a) of the Customs Act, 1962. (3) M/s. Sunora Electronics: During September 2005 to December 2006, M/s. Sunora Electronics imported CFL in SKD condition partly by itself in and partly through M/s. Shell & Pearl Ceramics Ltd., Ahmedabad. (a) It was found that vide six Bills of Entry, namely, 307935 dated 26/09/2005; 311179 dated 24/01/2006; 314762 dated 14/07/2006; 315896 dated 12/09/2006; 788914 dated 29/05/2006 and 981733 dated 01/12/2006, M/s. Sunora Electronics Industries at Morbi had imported directly from M/s. Lightex, Hong Kong, PCBs with socket for bulbs. Under another six bills of entry, M/s. Shell & Pearl Ceramics Ltd., Ahmedabad, imported matching quantities of tubes for bulbs from M/s. Intexport, Hong Kong vide bills of entry Nos. 971371 dated 19/09/2005; 676299 dated 20/01/2006; 791458 dated 31/05/2006; 837664 dated 15/07/2006; 871406 dated 19/08/2006 and 110107 dated 11/12/2006 through Nhava Sheva Port. (b) As per the statements recorded from Shri Jignesh Kanjibhai Patel, Partner of M/s. Sunora Electronics, they had imported PCB and lamp holder with metal cap from M/s. Lightex, China having their Office in Hong Kong; that to make a complete CFL, glass tubes with plastic base and lamp holders with metal caps were required. They imported PCB and lamp-holder with caps and the glass tubes were purchased from M/s. Shell & Pearl Ceramics Ltd., Ahmedabad. (c) In his statement dated 22/05/2008, Shri Kamlesh Jain, Manager-Accounts of M/s. Shell & Pearl Ceramics Ltd. admitted that they are a trading firm engaged in the business of import and trading of tiles and machinery parts. They imported components of CFL, namely, glass tubes and sold them exclusively to M/s. Sunora Electronics and this was done at the instance of Shri Bhanjibhai Nagjibhai of M/s. Sunora Electronics. They had imported these glass tubes from M/s. Intexport, Hong Kong and their Director, Shri Prafulla Gattani had negotiated with M/s. Sunora Electronics while he was visiting China. (d) Shri Prafulla Gattani, in his statement dated 29/05/2008 admitted that he had visited China in the year 2005. Shri Bhanjibhai of M/s. Sunora Electronics had also accompanied him. On the request of Shri Bhanjibhai, they had placed order for glass tubes with M/s. Intexport, Hong Kong and the firm was the authorised agent for Chinese manufacturers. (e) Shri Bhanjibhai Nagjibhai, in his statement dated 27/8/2008, admitted that, M/s. Sunora Electronics and M/s. Shell & Pearl Ceramics Ltd. had agreed to do business jointly by importing two components directly, one by M/s. Sunora Electronics and the other by M/s. Shell & Pearl Ceramics Ltd. After imports, by simple assembling all the components, CFL could be manufactured. (f) After completion of the investigation, a show cause notice dated 16/09/2010 was issued to M/s. Sunora Electronics and M/s. Shell and Pearl seeking to classify 792974 pcs of CFL imported by M/s. Sunora Electronic and M/s. Shell & Pearl Ceramics Ltd. under CTH 85393110 in terms of Rule 2(a) of the General Interpretative Rules and proposing to confiscate the same under Section 111(d) and (m) of the Customs Act and seeking to recover anti-dumping duty of ` Rs. 9,16,50,373/- from M/s. Sunora Electronic along with interest thereon. The notice also proposed to impose penalty on both M/s. Sunora Electronic and M/s. Shell & Pearl Ceramics Ltd. and also on Shri Jigneshbhai Patel, Partner of M/s. Sunora Electronic and Shri Prafulla Gattani, Director of M/s. Shell & Pearl Ceramic Ltd. (g) In the adjudication order, the proposals in the show cause notices were confirmed and anti-dumping duty of Rs. 9,16,50,373/- together with interest was confirmed on M/s. Sunora Electronics and equivalent amount of penalty was also imposed under section 114a of the customs act. A penalty of Rs. 2= crore was imposed on Shri Jigneshbhai Patel, Partner of M/s. Sunora Electronics and a penalty of Rs. 1= crore was imposed on M/s. Shell & Pearl Ceramics Ltd. under Section 112(a) of the Customs Act apart from a penalty of Rs. 2= crores on Shri Prafulla Gattani, Director of M/s. Shell & Pearl Ceramics Ltd. (4) M/s. Amar Energy Systems: Investigation conducted revealed that during the period November 2006 to September 2007, the appellant, M/s. Amar Energy Systems, had imported several consignments of CFL in SKD/CKD condition from Hong Kong and China through Nhava Sheva port vide Bills of Entry Nos: 954698 dated 07/11/2006; 664778 dated 21/02/2007; 697579 dated 22/03/2007; 843715 dated 21/07/2007; 865868 dated 08/08/2007 and 908232 dated 11/09/2007. Vide the aforesaid Bills of Entry, the appellant imported 13000 pieces of CFL parts namely, glass tubes, PCB + cap, 72000 pieces of glass tube with holder and micro assembly each and 72100 pieces of tube with holder and 327000 pieces of micro assembly for fluorescent light and 144900 pieces of glass with holder. Investigation revealed that, Shri Nitinbhai Patel, Power of Attorney holder and husband of the proprietress of M/s. Amar Energy Systems, had visited China to arrange for import of CFL in SKD condition in different consignments after negotiating with the Chinese suppliers. The modus operandi adopted was to import glass tubes in one consignment and PCB with Cap in another consignment in matching quantity. When these parts and components are put together by merely soldering of wires, the complete CFL could be manufactured and in terms of Rule 2(a) of the General Interpretative Rules, the goods under importation merited classification as CFL under CTH 8539 3110. (a) Accordingly, after issue of the show cause notice and hearing the appellant, anti-dumping duty of Rs.3,53,33,940/- together with interest was confirmed on the appellant and equivalent amount of penalty imposed under section 114a of the customs act. Further, a penalty of Rs. 5,00,000/- was imposed on Shri Nitinbhai Patel under Section 112(a) and 114AA of the said Customs Act. (5) Aggrieved of these decisions, the appellants are before us.
3. The learned counsel for Samay Electronics made the following submissions which are summarized as follows:- 3.1. The appellants imported glass tubes with base from the Chinese exporter through Kandla port and holder with wire and populated PCBs from the same Chinese exporter through Mumbai/Nhava Sheva ports since November 2004 onwards and the goods were declared as parts and components of CFL and classified under CTH 8539 9010 and cleared the same on payment of appropriate customs duty. These parts and components were brought to appellants factory at Morbi for manufacture of CFL and CENVAT credit of the CVD paid on such parts and components were also availed on the CFL so manufactured. The appellant discharged excise duty liability in terms of Section 4A of the Central Excise Act, 1944. The appellant, for manufacture of CFL, had made an investment of ` 35 lakhs on capital goods and had employed about 300 workers. The Director General of Anti-Dumping issued a Notification dated 16/08/2001 initiating anti-dumping investigations concerning imports of CFL originating from China and the product covered was Compact Fluorescent Lamp (CFL) with one or more glass tubes and which have all lighting elements, all electronic components and cap integrated in the lamp foot. It also covered Compact Fluorescent Lamps without choke or ballast. 3.2. On 02/11/2001 the preliminary findings were notified vide Notification No. 34/1/2001-DGAD dated 02/11/2001 and the product covered was as described above. Vide Notification No. 128/2001-Cus dated 21/12/2001, anti-dumping duty was imposed on Compact Fluorescent Lamps originating from China. The DGAD issued final findings vide Notification dated 14/11/2002 and the product covered by the investigation was the same as that covered by the preliminary investigation and vide Notification No. 138/2002-Cus dated 10/12/2002, the Central Government imposed definitive anti-dumping duty on CFL originating from China. Notification 138/2002 expired on 20/12/2006. Thereafter, the DGAD initiated fresh anti-dumping investigation vide Notification No. 14/1/2007-DGAD dated 30/08/2007 concerning imports of CFL with or without ballasts/control gear/choke, whether or not assembled either in CKD or SKD condition, originating from China. Thereafter, the preliminary findings were notified vide Notification No. 14/1/2001-DGAD dated 12/03/2008 and vide Notification No.. 126/2008-Cus dated 21/11/2008, provisional anti-dumping duty was imposed on Compact Fluorescent Lamps, whether or not assembled, either in CKD or SKD condition. Vide Notification dated 27/12/2009 the DGAD issued final findings and the product covered included: (a) CFL with integral/ integrated built in ballast / control gears /choke also known as self-ballasted which are complete, ready to use units; (b) Non-integrated CFLs which do not have built in ballast / control gears / choke. (c) Unassembled CFL without ballast/choke/control gear 3.3. Vide Notification 55/2009-Cus dated 26/05/2009, definitive anti-dumping duty was imposed on CFL, with or without ballast / control gear / choke, whether or not assembled, either in CKD or SKD condition. It is contended that Notification 138/2002-Cus dated 10/12/2002 expired on 20/12/2006 on its own without any express repeal and this notification is a temporary statute. Section 159A of the Customs Act, 1962, does not apply to temporary statutes and therefore, this Notification does not exist in the eye of law after its expiry, except for things past and closed. Even notices issued prior to expiry would cease to exist after the expiry. Hence, the present proceedings, being bad in law, are illegal. 3.4. Further, in terms of Section 9A(5) of the Customs Tariff Act, it is clearly provided that anti-dumping duty imposed under Section 9A shall cease to have effect on the expiry of five years from the date of such imposition and therefore, Notification 138/2002-Cus ceased to have effect after the expiry of five years from 21/12/2001. Therefore, the demand for anti-dumping duty is not sustainable in law. It is also pointed out that the adjudicating authority has dropped the anti-dumping duty demand for imports post 20/12/2006. 3.5. The common law rule is that if an Act expired or was repealed it was regarded, in the absence of provision to the contrary, nothing can survive except as to matters and transactions past and closed. Reliance is placed on Maxwells The Interpretation of Statutes - Twelfth Edition wherein it is stated that: The common law rule was that if an Act expired or was repealed it was regarded, in the absence of the provision to the contrary, as having never existed, except to matters and transactions past and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution began while the Act was still in force. 3.6. Reliance is also placed on the Kolhapur Canesugar Works Ltd. vs. Union of India 2000 (119) ELT 257 (SC) case, wherein the apex Court considered the issue of omission of a statute in terms of Section 6 of the General Clauses Act, 1857 and it was held that: In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision. 3.7. It is argued that since Section of 6 of the General Clauses Act is not applicable to temporary statute, for the same reason section 159a of the customs act is also not applicable to temporary statutes. Reliance is also placed on the decision of the apex Court in the case of S. Krishnan vs. State of Madras AIR 1951 SC 301, wherein was held that the general rule in regard to temporary statute is that in the absence of special provision to the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. 3.8. Support is sought to be derived from the decisions of the honble Bombay High Court in Writ Petition No. 410 of 2010 in the case of Sparkling Waters Pvt. Ltd. vs. Union of India and of the apex Court in the case of District Mining Officer vs. Tata Iron & Steel 2001 (7) SCC 358 wherein also the above principles have been followed. So is the case with the decision of the honble apex Court in India Cement vs. State of Tamil Nadu (1990) 1 SCC 12. The contention is that in a case where notice is issued prior to the expiry of the Notification, and the order is passed after expiry, it is not a matter past and closed. This is for the reason that the notice is a mere proposal and not a right in favour of the Revenue. It is also pointed out that in the past when auxiliary duties of customs were imposed on an annual basis under the Finance Acts, there was a specific provision incorporated to make Section 6 of the General Clauses Act applicable as if the section imposing auxiliary duty had been repealed by a Central Act. In the case of anti-dumping duty, in the Notifications levying anti-dumping duty, there is no such saving clause and therefore, in the absence of a specific provision, once the anti-dumping levy expires, all actions initiated if not concluded before expiry, would terminate. In the present case, since the show cause notice itself has been issued after the expiry of the Notification, its legality cannot be upheld at all and, therefore, the present proceedings confirming anti-dumpy duty after the expiry of the Notifications is null and void and unsustainable. 3.9. The next argument put forth is that as far as the levy of basic Customs duty is concerned, there is no change in the classification sought by the Revenue and the goods imported have been treated as parts. Even for the levy of CVD, the goods have been treated as parts. The present notice seeks to alter the classification only in respect of anti-dumping duty alone, wherein the classification is sought to be changed as complete CFL and this is fatal to the Revenues case. Even if it is assumed that the imported goods are CFL in SKD/CKD condition, the law was amended only in 2008 wherein CFL in CKD/SKD condition were also made liable to anti-dumping duty. Therefore, for the period prior to March 2008, there cannot be any anti-dumping duty on CFL in CKD/SKD condition. Section 9A(1A) of the Customs Tariff Act was brought under the statute w.e.f. 08/04/2011 which provided for levy of anti-dumping duty in case of circumvention either by altering the description or the name or composition of the article with an intent to render ineffective the levy of anti dumping duty. The said provisions were made effective from 19/01/2012. Therefore, prior to 08/4/2011 / 19/01/2012, there was no provision, if the importers resorted to circumvention by bringing articles in unassembled or disassembled conditions. Even as per the amended provisions, there are a number of pre-requisites required to be fulfilled which includes investigation to decide the circumvention and the recommendation of DGAD as regards circumvention, etc. Therefore, prior to 2008 complete and read to use CFL alone was liable to anti-dumping duty and parts and components imported were not liable to anti-dumping duty. This is also supported by the clarification issued by DGAD vide letter dated 01/05/2006 in pursuance to a letter dated 04/04/2006 by M/s. Khaitan Electricals Ltd. In the said letter, it was clarified that: (a) Anti dumping duties were recommended / imposed on the following two types of CFLs:
i) Complete, ready to use compact fluorescent lamps wherein choke is integrated within the lamp. ii) Complete, ready to use compact fluorescent lamps wherein choke is external. (b) Anti dumping duties were not recommended on parts/components of CFL. (c) CFL with Choke is complete ready to use compact fluorescent lamps wherein choke is an internal part. (d) CFL without choke as defined in the final findings is complete ready to use compact fluorescent lamps wherein choke would be external part. 3.10. In view of the clarification issued by the DGAD, it is clear that CFL in SKD/CKD condition were not liable to anti-dumping duty prior to 2008 as they were not covered by the investigation conducted by the DGAD. Revenue has also not adduced any evidence to show that the parts and components imported by the appellants can be bought and sold as complete ready-to-use CFL. Reliance is placed on the following decisions, namely, Anchor Daewoo Industries Ltd. vs. CC, Kandla = 2007 (214) ELT , Wipro Ltd. vs. CC, Chennai 2007 (217) ELT 558 and Philips India Ltd. vs. Commissioner of Customs, Mumbai 2004 (166) ELT 49. 230 wherein it was held that parts of CFL are not covered by the anti-dumping duty Notification No. 138/2002-Cus dated 10/12/2002. 3.11. As regards the reliance placed by the Revenue in the case of Commissioner of Customs, Chennai Vs. Plaza Lamps & Tubes 2005 (185) ELT 223, wherein the Tribunal had held that glass tube with plastic lamp base was liable to anti-dumping duty, the said decision was reversed by the Honble Delhi Court in Plaza Lamps & Tubes Ltd. vs. Commissioner of Customs [2007 (209) ELT 182 (Del.)] Similarly, in the case of Delta Electronics vs. CCCE [2012 (283) ELT 68 ], it was held that import of parts of CFL like electric bulbs, populated PCBs, plastic parts, metal caps, etc. will not mean that there is import of CFL in CKD/SKD condition. In Nav Durga Associates vs. Union of India [2013 (287) ELT 19 (Del.)], the honble Delhi High Court held that Rule 2(a) of GIR changes the classification, but it does not alter the nature and description of the imported goods. In the said case, the assessee imported various parts of dry battery cells and the department sought to levy anti dumping duty on such parts by applying Rule 2(a) holding that there has been import of dry battery cells in CKD/SKD condition. The honble High Court held that since Notification did not cover parts of dry battery cells, the demand for anti-dumping duty would not sustain. 3.12. The learned counsel further argues that Rule 2(a) of GIR is inapplicable for a number of reasons. The said rule would apply only when the goods are presented in one lot at the time of import. If there are imports separately at different points of time at different ports, they cannot be treated as presented together so as to invoke Rule 2(a) of GIR. Reliance is placed on the decision in Tata Motors vs. CCE ]2008 (222) ELT 289] affirmed by the honble apex Court. It is also argued that in Mewar Bartan Udyog [2008 (231) ELT 27 (SC)], the honble apex Court has held that rules of Interpretation applicable for classification cannot be applied while interpreting a Notification. It is further argued that Rule 2(a) does not apply for the purposes of Section 9A. The same applies only in respect of the provisions of Customs Act, namely, for levy under Section 12 of the Act read with Section 2 of the Customs Tariff Act, 1975. It does not apply to levy of anti-dumping duty. The above position is clear from the decision of the honble apex Court in the case of Hyderabad Industries Ltd. vs. Union of India [1999 (108) ELT 321 (SC)]. Even if it is assumed that Rule 2(a) is applicable for the proceedings under Section 9A, since the Notification imposing anti-dumping duty does not cover CFL in SKD/CKD condition, the same cannot be applied. In Permalite Electricals [2004 (168) ELT 164 (AAR)], the Authority for Advance Ruling had held that Rule 2(a) cannot be applied for levy of anti-dumping on CFL imported in parts/CKD/SKD condition. It is also contended that from the various e-mails exchanged between the appellant and the foreign supplier, the intention was to import parts only and not for import of complete CFL. 3.13. It is further submitted that the reliance placed by the Revenue on Roma International vs. Commissioner of Customs, Mumbai 2004 (174) ELT 83 is distinguishable on facts, inasmuchas in the said case, the appellant therein had filed one single bill of entry for import of goods described as unbranded electronic 9W PL tubes of 50000 and unbranded electronic 11W PL tubes 50000 pieces. In the said case, the Tribunal and the Commissioner held that CFL with/without ballast was considered during investigation proceedings and was covered by the anti-dumping duty Notification and applying Rule 2(a) of GRI held that the item under import was CFL leviable to anti-dumping duty. In the present case, the imported items are completely different and what has been imported are parts and components. Similarly, reliance placed by the Revenue in Commissioner of Customs vs. Maestro Motors 2004 (174) ELT 289 (SC); Commissioner of Customs vs. Phoenix International 2007 (216) ELT 503 (SC) and Sharp Business Machines 1990 (49) ELT 640 (SC) are also distinguishable. 3.14. The learned counsel further argues that the appellant received the show cause notice only on 24/05/2007 and therefore, the entire period of demand is clearly beyond the normal period of six months. It is also submitted that as per the information obtained through RTI, , Commissioner of Customs, Mumbai, was aware that parts of CFL were imported through Mumbai and Kandla port and the manufacturing process carried out in appellants premises at Morbi and he had sought information in this regard from the Commissioner of Central Excise & Customs, Rajkot. Therefore, the department was also under the belief that anti-dumping duty is not leviable on parts of CFL. 3.15. The learned counsel for M/s. Wipro Limited, while reiterating the arguments made in the case of M/s. Samay Electronics, submits that anti-circumvention provisions which came into force on 08/04/2011 are only prospective and cannot be applied to past imports. Further, CFL in SKD condition was covered by fresh investigation conducted in 2008 and therefore, it is clear that prior to this investigation, the levy of anti-dumping duty applied only on complete CFL. It is further submitted that tax planning cannot be termed as illegal or illegitimate or impermissible. It is also contended that goods cannot be confiscated under Section 111(m) as Section 9A(8) of the Customs Tariff Act does not borrow the provisions relating to confiscation. Imposition of penalty under Section 114A is also incorrect as the said provision envisages recovery of duty under Section 28. Section 28 cannot apply in respect of a Bill of Entry which has been finally assessed. 3.16. The learned counsel for M/s. Sunora Electronics Industries submits that during the period September 2005 to March 2008, the appellant imported 16 consignments of lamp holders with/without metal caps and appellant classified these as parts of fluorescent tube lamps as falling under CTH 8539 9010. The glass tubes which are required for manufacture of CFL were purchased locally from M/s. Shell & Pearl Ceramics Ltd., Ahmedabad. The orders for supply of glass tubes were placed by Shell & Pearl Ceramics Ltd. and the remittance for the same were also made by M/s. Shell & Pearl Ceramics Ltd. Thus the goods were imported by M/s. Shell & Pearl Ceramics Ltd. and after importation, they sold the same to the appellant, M/s. Sunora Electronics Industries. M/s. Sunora Electronics Industries and M/s. Shell & Pearl Ceramics Ltd. are separate and independent legal entities and are not related to each other in any way. Therefore, clubbing the imports of both these entities invoking the provisions of Rule 2(a) of GIR is clearly unsustainable in law. Accordingly, it is pleaded that the proceedings initiated against the appellant and its partner be dropped. 3.17. The learned counsel for M/s. Amar Energy Systems, while reiterating the submissions made by the counsel for M/s. Samay Electronics Pvt. Ltd., submits that the appellant had imported parts of CFL in various consignments and these imports would not cover complete CFL. In any case, the anti-dumping duty did not cover CFL in CKD/SKD condition and, therefore the demands are clearly unsustainable in law. Accordingly, it is pleaded that the demands be set aside.
4. The learned Special Consultant appearing for the Revenue made the following submissions: - 4.1. The appellants herein had imported CFLs in the guise of components of CFL only to evade anti-dumping duty by resorting to subterfuge. They split-up the consignments and imported them on different dates and sometimes through different ports. During the investigation, each of the appellants had admitted that the imported components, namely, glass tubes with base, holders with wire and PCBs (put together by soldering wires), constituted a complete CFL in SKD condition. In the light of these admitted facts, the contention that the goods have to be assessed as presented i.e., parts and components of CFL cannot be accepted. It is open to the department to club the components or parts of any complete article imported under two or more bills of entry by a person or by more than one person, having common economical interest at or about the same time, so as to make such an article in CKD or SKD condition by virtue of Rule 2(a) of General Interpretative Rules. Various courts, including the apex Court have held that the goods imported in different consignments on different dates and even through different ports can be clubbed together, if it is found that it has been so done only as a subterfuge to evade payment of duty. He relies on the following decisions:- (a) Sharp Business Machines Pvt. Ltd. 1990 (49) ELT 640 (SC): In this case, the importers imported three consignments of components and consumables in SKD/CKD condition for plain paper copiers under three bills of entry, all dated 21/01/1987. The importer also imported one consignment of such goods from Singapore vide bill of entry dated 11/03/1987. The proceedings initiated by the department alleged that the company was guilty of mis-declaration of the goods. The adjudicating authority held that the goods imported were fully finished copiers in SKD/CKD form. In appeal, the Tribunal dismissed the appeals by recording a finding that one has to look into the respective licences and not to the fact that if all the consignments covered by all the bills of entry are assembled together, there will be a full and complete machinery. The said decision was challenged before the honble apex Court, and the honble apex Court held that the device adopted was a complete fraud on the import policy and the appellant was doing indirectly what he was not permitted to do directly and the appeals were dismissed accordingly. (b) In Phoenix International Ltd. case, [2007 (216) ELT 503 (SC)], the appellant therein, imported synthetic shoe uppers numbering 5215 pairs on 16/02/1996. On the same day, M/s. Phoenix Industries Ltd. imported outer soles, insoles and sock liners numbering 5151 pairs in the same container. Both the companies declared the respective items, imported as components and parts. M/s. Phoenix Industries Ltd. was 100% fully owned subsidiary of M/s. Phoenix International Ltd. The department sought to club the items imported by both the importers and sought to classify the same as complete synthetic shoes in SKD/CKD form invoking Rule 2(a) of the GIR. The matter, after adjudication and appellate stages, reached the Supreme Court and the honble Supreme Court observed that the entire device was a colourable one undertaken to show that what was imported were parts and not the footwear in SKD condition and it was held that M/s. Phoenix International Ltd. was the real importer of all the four items and hence the department was right in clubbing them. (c) Similarly, in Maestro Motors Ltd. 2004 (174) ELT 289 (SC), the appellant entered into a collaboration agreement with M/s. Rover U.K., for manufacture of Montego Cars. They imported 217 sets of cars consisting of body assembly complete with accessories, gear, engine assembly etc. and also components, such as, wind screen assembly, wheel rims, glass assembly, radiator assembly, front and back suspension, fuel tank assembly, and so on. In effect, they were importing the entire car in CKD condition for which they filed 11 bills of entry with Bombay Customs and another 14 bills of entry with Madras Customs and claimed the goods to be components and also sought to avail benefit of Notification No. 73/93. The adjudicating authority held that, between the imports in Bombay and Madras, entire cars had been imported in CKD condition and thus the components were classified as cars. At the appellate stage, the Tribunal allowed the appeal of M/s. Maeostro Motors Ltd. The matter reach the honble Supreme Court and the honble apex Court held that such components are nothing but cars in CKD condition by applying the interpretative Rule 2(a) of the General Rules of Interpretation of the Customs Tariff. (d) In Videomax Electronics case [2011 (264) ELT 466], two proprietary firms, namely, M/s. Electronic Instrumentation owned by Shri Vinod Kumar Agarwal and M/s. Videomax Electronics owned by the wife of Shri Vinod Kumar Agarwal, imported parts and components of rechargeable lights and radio cassette recorders during the period from April, 1997 to February, 1998. The goods were assessed and allowed to be cleared. Later on, investigation was undertaken which revealed that when the parts and components imported by the two firms are clubbed together, they constituted radio cassette recorder and rechargeable light in CKD/SKD condition in terms of Rule 2(a) of the General Rules of Interpretation of the Customs Tariff. Accordingly, proceedings were initiated by issue of a show cause notice and the adjudicating authority dropped the show cause notice on the ground that each bill of entry is to be assessed in the condition in which the goods are presented for assessment. Revenue took up the matter in appeal before this Tribunal and this Tribunal observed that parts and components imported by the husband and wife were in matching quantity and when they were clubbed together, they constituted complete kits of radio cassette recorders and rechargeable lights in CKD/SKD condition in terms of Rule 2(a) of the General Rules of Interpretation of the Customs Tariff. In deciding this matter, the Tribunal followed the judgment of the honble apex Court in the case of Phoenix International cited supra. (e) In Hindustan Motors Ltd. [2003 (156) ELT 155], M/s. Hindustan Motors had imported complete diesel/petrol engines in unassembled condition during the period February 1999 to July, 2000 and cleared the same under 104 bills of entry by declaring them as parts and components of such engines. The matter was taken up in appeal before this Tribunal and this Tribunal observed that M/s. Hindustan Motors had imported component sets of engines in unassembled condition which on assembly would have the essential character of the complete or finished article, by application of Rule 2(a) of the General Interpretative Rules. Aggrieved by this decision, M/s. Hindustan Motors filed civil appeals before the honble apex Court and the honble apex Court dismissed the said appeals [2005 (181) ELT A130 (SC)]. (f) In Roma International vs. CC, Mumbai case [2004 (174) ELT 83] this Tribunal had occasion to examine the levy of anti-dumping duty on CFL in CKD/SKD condition. The Tribunal held that Rule 2(a) of GIR can be applied for classifying the product, and by such application, if the goods under import satisfy the description of unassembled or dis-assembled CFL, they can be classified as CFL and anti-dumping duty can be levied on such CFL. (g) In Ankit Asthana vs. Commissioner of Customs (Import), Nhava Sheva, vide final order No. A/223-224/14/CSTB/C-I dated 16/12/2013 this Tribunal examined levy of anti-dumping duty on plastic injection moulding machine imported in CKD/SKD condition and held that, if Rule 2(a) of the GIR is invoked, the goods under importation would satisfy the description of a complete machinery leviable to anti-dumping duty and accordingly, upheld the levy of anti-dumping duty. (h) As regards the argument that since anti-dumping duty Notification expired on 20/12/2006 without any saving clause, and thereafter, proceedings cannot be initiated, sub-section (8) of Section 9A was amended vide Finance Act, 2009 which provided for application of the provisions of Customs Act, 1962 and the Rules and Regulations made thereunder in respect of anti-dumping duty, as far as may be, as they apply in relation to the duties leviable under that Act and vide Section 102 of the Finance Act, 2009 the said section was been given retrospective effect from 01/11/1995 and all actions taken during the period 01/01/1995 to 19/08/2009 were validated. In the present case, during the currency of Notification 138/2002-Cus dated 20/12/2002, the appellant incurred the liability to anti-dumping duty and the said liability would not get extinguished with the expiry of the Notification. Accrued liabilities continue even after the expiry of the Notification and therefore, the argument that no action can be continued or taken after the expiry of the Notification is incorrect and unacceptable.
(i) The learned Special Consultant submits that each of the appellant in the appeals herein, is engaged in the assembly of CFLs and requires all the three components. However, instead of importing all the three components together, they chose to import the same separately in different consignments, on different dates and sometimes through different parts. As far as M/s. Samay Electronics is concerned, they chose to import two components through Mumbai Port and one component through Kandla Port. M/s. Sunora Electronics Industries imported two components by itself and one component through M/s. Shell & Pearl Ceramics Ltd., although it could have imported all the three components by itself. M/s. Wipro Ltd. and M/s. Amar Energy Systems had, imported all the three components in different consignments, on different dates. The obvious intention behind such arrangement was to evade anti-dumping duty. Hence they resorted to subterfuge. The intention of the importers plays an important role in such matters as has been held by the honble apex Court in the case of Phoenix International Ltd (supra). In view of the above, it is submitted that, anti-dumping duty has been correctly demanded and therefore, the impugned orders confirming anti-dumping duty together with interest, confiscation of the goods along with imposition fines and penalties are required to be upheld and he pleads accordingly.
5. We have carefully considered the submissions made by both the sides. Our findings and conclusions are detailed in the ensuing paragraphs. 5.1. The first issue for consideration is whether with the expiry of Notification 138/2002-Cus dated 10/12/2002 w.e.f. 20/12/2006, recovery proceedings for escaped anti-dumping duty could be initiated or continued or not? The appellants have argued that, if an Act expires or was repealed, it was regarded, in the absence of the provisions to the contrary, as having never existed except matters and transactions passed and closed. They have also relied on the decision of the honble apex Court in the case of Kolhapur Canesugar Works Ltd. vs. Union of India (supra) in support of this contention to say that the proceedings will terminate since the statute expires. Reliance has also been placed on the decision of the honble apex Court in the case of S. Krishnan vs. State of Madras (supra) and a few other decisions.
(i) A similar issue came up for consideration by a Larger Bench of this Tribunal in the case of Surana Metals & Steels (I) Ltd. vs. Commissioner of Central Excise, Chennai 2007 (216) ELT 24 (Tri.-LB). The question for consideration before the Tribunal was, with the omission of Section 3A of the Central Excise Act, w.e.f. 11/05/2001 and also omission of Rules 96ZO and 96ZP of Central Excise Rules, 1944 w.e.f. 01/03/2001, whether proceedings for recovery of obligations and liabilities which were incurred when the provisions were still in force could be continued or not? The Larger Bench considered the decision of the honble apex Court in the case of Kolhapur Canesugar Works Ltd. (supra) and noted that Section 38A was added in the Central Excise Act vide Finance Act, 2001 and vide Section 131 of the said Finance Act, it was specifically provided that where any rule under the Act is amended or repealed or superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not inter alia affect the previous operation of such rule or affect any obligation or liability incurred under the rules so amended, repealed, superseded or rescinded. It was further held that penalties, forfeiture or punishment incurred in respect of any offence committed under or any violation of such rules were also not affected. The Larger bench noted that, there cannot be a greater all pervasive saving clause than Section 38A and concluded that the provisions of Section 38A of the Central Excise Act, 1944 inserted by Section 131 of the Finance Act, 2001 are applicable in respect of the obligations and liabilities incurred under Rules 96ZO and 96ZP before they were omitted by Rule 7 of the Central Excise Rules, 2001, notwithstanding the omission of Section 3A w.e.f. 11/05/2001 by the Finance Act, 2001. Section 159A of the Customs Act is identical in its wordings and scope to Section 38A of the Central Excise Act, 1944 and was inserted into the Customs Act, 1962 vide Section 113 of the Finance Act, 2001 and vide Section 114 of the said Finance Act, 2001, the action taken were validated as if the provisions of section 159a were in force at all material times w.e.f. 01/02/1962 onwards till the enactment of Finance Act, 2001, notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or authority. In other words, section 159a of the customs act, is in pari materia with Section 38A of the Central Excise Act, 1944 and, therefore, the Larger Bench decision in the case of Surana Metals & Steels (I) Ltd. (supra) would apply with full force in the facts of the present case also.
(ii) A similar issue came up for consideration before the honble High Court of Punjab & Haryana at Chandigarh in the case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise, Chandigarh [2007 (207) ELT 58 (P&H)]. The question for consideration before the honble High Court was, whether with the omission of Section 3A of the Central Excise Act, 1944, does the duty and interest liability which arose when the Section was in force would get wiped out? The honble High Court also considered the decision of the honble apex Court in the case of Kolhapur Canesugar Works Ltd. (supra) and District Mining Officer vs. Tata Iron & Steel (supra) decisions relied upon by the appellants herein. It was held by the honble High Court that, in view of the provisions of Section 38A of Central Excise Act, 1944, even after omission of Section 3A, the liability of the assessee thereunder would not be wiped out and the question was answered in favour of the Revenue and against the Petitioner. In a recent decision in the case of Mittal Alloys vs. Commissioner of Central Excise, Chandigarh 2014 (304) ELT 399 (P&H), the honble High Court of Punjab & Haryana considered an identical matter. The question before the honble High Court was whether the omission or otherwise of Rule 96ZO(3) of the Central Excise Rules would affect any obligation or liability already accrued or incurred? The honble High Court considered the various decisions of the apex Court and the High Courts including the Kolhapur Canesugar Works Ltd. case (supra) and came to the conclusion that omission or otherwise of Rule 96ZO(3) of the Central Excise Rules would not affect any obligation or liability that has already accrued or incurred and therefore, the submission that omission of Rule 96ZO(3) would render the adjudication proceedings a nullity was without any merit. 5.2. In the present case, Section 159A of the Customs Act, 1962 which is pari materia with Section 38A of the Central Excise Act, provides for saving of any right, privilege, obligation or liability acquired, accrued, or incurred under any rule/regulation/ Notification or order amended/repealed/superseded or rescinded or affect any penalty, forfeiture or punishment incurred in respect of any offence committed under or any violation of any rule, regulation, Notification or order so amended, repealed, superceded or rescinded. The said provision provides for institution, continuation or enforcement of any investigation, legal proceedings or remedy and any penalty forfeiture or punishment may be imposed as if the rule, regulation, Notification or order, as the case may be, had not been amended , repealed, superseded or rescinded. In the present case, the anti-dumping duty Notification expired. Expiry is also one form of supercession or rescission or repeal, the effect being the same as the latter. Therefore, the contention of the appellants that adjudication proceedings cannot continue after the expiry of anti-dumping duty Notification for recovery of any escaped duty liability or imposition of any penalty, is without any merit and we reject this contention totally. Therefore, the Commissioner of Customs is well empowered to initiate, continue and conclude any proceedings to determine the liability when the anti-dumping duty Notifications were in force and any liability which has arisen during the currency of the anti-dumping duty Notification cannot be wiped out merely because the Notification expired or ceased to exist. With the retrospective application of sub-section (8) of Section 9A of the Customs Tariff Act, the provisions of section 159A of the Customs Act would apply in respect of the proceedings relating to anti-dumping duty as well and therefore, the argument that after expiry of the anti-dumping notification, proceedings cannot be initiated has no legal basis and we reject this contention. 5.3. Reliance has been placed on the clarification given by DGAD in April, 2006 about the scope of levy of anti-dumping duty on CFL to say that the said levy applies only on complete, ready to use CFL and not on CFL imported in CKD/SKD condition. This argument is not tenable for two reasons. The clarification has been issued in 2006 in respect of a levy imposed in 2002. Therefore, the said clarification is not contemporaneous as to have any persuasive value. Secondly, the levy is governed by the Customs Notification 128/2002-Cus. In the said notification as also in the notification issued by the DGAD recommending the levy, the expression used is compact fluorescent lamp falling under Chapter 85 of the First Schedule to the Customs Tariff Act. It is these words used in the notification, which are unambiguous and clear, that would prevail for the purposes of the levy rather than any clarification issued in this regard, that too, after a considerable lapse of time. It is a settled position that the law has to be interpreted strictly in accordance with the language employed. Nothing has to be read in or nothing has to be excluded while interpreting the plain terms of the statute. As stated by the Privy Council [Crawford vs. Spooner, (1846) 6 Moore PC 1]- we cannot aid the Legislatures defective phrasing of an Act, we cannot add or mend and, by construction, make up deficiencies which are left there. Therefore, no reliance can be placed on the said circular for interpretation of the anti-dumping duty notification. 5.4. The next contention of the appellant is that the present proceedings seek to levy anti-dumping duty on the goods under importation by invoking the provisions of Rule 2(a) of the General Interpretative Rules whereas in respect of basic Customs duty or countervailing duty, the notice does not seek to treat the goods imported as complete CFLs but accept the position that they are parts of CFL. This contention is also not valid. There are different types of Customs duty levied under different Acts or Notifications. There is a duty of Customs chargeable under Section 12 of the Customs Act, 1962. There is an additional duty of Customs leviable under Section 3(1) of the Customs Tariff Act, 1975, equivalent to the duty applicable on domestically produced goods. Further, under Section 3(3) of the said Customs Tariff Act, additional duty can be levied on raw materials, components and ingredients that go into the manufacture of imported goods. Further anti-dumping duty can be levied under Section 9A of the Customs Tariff Act, 1975. Merely because the levy of customs duty under Section 12 of the Customs Act, 1962 arise on the importation of the articles into India, it does not mean that the Customs Tariff Act cannot provide for the charging of any duty which is independent of the Customs duty leviable under the Customs Act. Anti-dumping duty is one such levy, which is independent of the duty of Customs charged under Section 12 of the Customs Act or the duty levied under Section 3 of the Customs Tariff Act. It is a separate levy by itself and therefore, proceedings can be initiated for recovery of such duty irrespective of the fact that no proceeding was initiated for recovery of duties leviable under Section 12 of the Customs Tariff Act or Section 3 of the Customs Tariff Act. Each levy is distinct and different not only on account of taxable event but also due to different rates of duty and each levy operates in its own field. Therefore, merely because the Customs authorities did not choose to demand differential Customs duty in terms of the provisions of Section 12 of the Customs Act, 1962 or Section 3 of the Customs Tariff Act, it does not restrain or prohibit them, in any way, in demanding anti-dumping duty under Section 9A of the Customs Tariff Act. It is also possible that the rates of duty being the same on the complete CFL and also on the parts of CFL, no differential duty liability might have arisen under the provisions of the Customs Act, 1962 or under Section 3 of the Customs Tariff Act. That does not mean that if any liability arises on account of levy of anti-dumping duty under Section 9A, separate and independent proceedings cannot be instituted by the department against the importer. 5.5. The next question is whether provisions of Rule 2(a) of the General Interpretative Rules could be invoked for levy of anti-dumping duty. Notification 128/2002-Cus dated 10/12/2002 imposed anti-dumping duty on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act originating in or exported from the country(s) specified in column (2) of the table annexed thereto, when exported by exporter(s) mentioned against the corresponding entry in column (3) of the said Table, and imported into India, an anti-dumping duty at the rate which is equivalent to the difference between the amount mentioned in corresponding entries in column (4) or column (5) of the said Table, and the landed value of the imports per unit in US$. As per the table, if the country of export is Peoples Republic of China or Hong Kong, anti-dumping duty is attracted in respect of exporters mentioned therein at the rates prescribed in Column 4/Column 5 of the table. In column 3 separate rates have been prescribed if the exporter is M/s. Philip & Yaming Lighting Co. Ltd. or M/s. Lighting & Electrical Appliance Co. Ltd. Anti-dumping duty is prescribed in respect of other exporters from China at varying rates and in respect of all exporters from Hong Kong at a uniform rate. In other words, the levy is on Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act. Therefore, the first requirement is to ascertain whether the goods under importation conforms to the description specified in the anti-dumping duty Notification. In other words, the goods have to be classified under the Customs Tariff Act first before levying anti-dumping duty. General Rules of Interpretation of the Schedule to the Import Tariff says classification of the goods in the schedule would be governed by the following principles. In the present case, Rule 2(a) is relevant and it reads as follows: 2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or dis-assembled. 5.6. From the above Rule, it is evident that for the purposes of classification, an incomplete or unfinished article, if as presented, has the essential character of a complete or finished article, it would be covered by the heading pertaining to the complete or finished article. The second part of the Rule makes it clear that the reference would also include to the article presented unassembled or disassembled. Thus, for the purpose of Customs classification, these Rules shall apply and if by applying these Rules, the imported goods become classifiable under Chapter 85, the provisions of anti-dumping notification shall also apply, as per the clear and unambiguous wordings of the notification levying anti-dumping duty. It is in this premise and context, the arguments made by both the sides ought to be considered. 5.7. In respect of imports made by M/s. Samay Electronics, both Shri Vasantbhai Chunibhai Patel, Chief Engineer and Shri Rameshbhai Patel, Director have admitted that they assembled CFL by simply soldering the glass tubes with base imported at Kandla and holders with wire and populated PCB imported at Mumbai and they did not use any other material other than the imported components. It is also an admitted position that imports were managed by the appellant-firm by negotiating with various manufacturers in China. It is also revealed that the entire CFL in SKD condition have been supplied under the same number and date of invoice. However, a suffix to the said invoices were added as K & M in respect of consignments imported at Kandla port representing K and consignments imported at Mumbai port representing M. Suppliers of the goods were the same in all the cases. In the present case, it is seen that in one of the imports, the same vessel carried both these consignments and a part of the consignment was unloaded at Mumbai and the balance at Kandla. In other words, the order was placed by M/s. Samay Electronics for complete CFL and they were also transported by the same vessel. Only the consignments were artificially split up, part of which was offloaded at Mumbai and the balance at Kandla. Quantity of parts imported at Mumbai was matching with the quantity imported at Kandla and these consignments complemented each other so as to constitute a complete CFL. 5.8. Similarly, in the case of imports made by M/s. Wipro Limited, CFL in SKD form were imported in different consignments and in the consignment which was detained, it was found that the consignment consisted of all the three parts together, namely, sealed glass tubes, plastic lamp base and PCBs and when assembled together, they formed a complete CFL. It is further seen that common purchase orders were placed for import of these three items, namely, sealed glass tubes, plastic lamp base and PCBs of matching quantity and the invoices were also consecutively numbered in a set of three and each set was issued on the same date. From these documents recovered, it is clear that what was under importation was CFL in SKD/CKD condition and the same were mis-declared the as parts of CFL so as to evade anti-dumping duty. 5.9. In the case of Amar Energy Systems, the goods imported consist of all the parts in respect of bills entry 954698 dated 07/11/2006 and matching quantities of were imported in three bills of entries for a quantity of 72000 pieces for the bill of entry No. 664778 dated 21/02/2007 and 697579 dated 22/03/2007. Similarly vide bills of entry No. 843715 dated 21/07/2007 and 908232 dated 11/09/2007 217000 pieces of glass tubes with holders were imported whereas vide bill of entry No. 865868 dated 08/08/2007 the micro assembly for fluorescent light for a quantity of 217000 was imported. In other words, the imports were from the same foreign supplier and the entire order was for import of complete CFL and they were all split into different consignments so as to avoid anti-dumping duty. This fact has been admitted in the statements recorded from the officials of the importer-firm. It is in this factual scenario, one has to examine whether rule 2(a) of GIR would apply or not? 5.10. As regards the argument that Rule 2(a) of the General Rules of Interpretation is not applicable to anti-dumping duty is devoid of merits. Anti-dumping duty is levied on articles dumped into country of the description specified in the notification and falling under the corresponding tariff items mentioned against them. Section 9A forms part of the Customs Tariff Act and therefore, the Rules of Interpretation, which is an integral part of the Schedule to the Customs Tariff Act would apply in respect of the levy under Section 9A as well. Further as per Rule 2(g) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the expression article has the meaning assigned to it in the Customs Tariff Act, 1975. Rule 2(a) of the General Rules of Interpretation which is an integral part of the said Act defines the meaning of the term article. Thus as per the statutory provisions relating to anti-dumping duty, the said levy would apply not only to complete articles but also to incomplete articles or articles, unassembled or disassembled, if as presented the incomplete article has the essential character of the complete article. In other words, the scheme of levy of anti-dumping duty under the Customs Tariff Act, 1975, does not envisage or prescribe a separate set of principle of classification for the purposes of the said levy. The General Rules of Interpretation of the Tariff would apply equally for the levy of basic customs duty under the Customs Act, Additional Duty of Customs under Section 3 of the Customs Tariff Act as well as Anti-dumping duty under Section 9A of the Customs Tariff Act. Therefore, the contention of the appellant about the inapplicability of Rule 2(a) of the General Interpretative Rules for levy of anti-dumping duty has to be rejected as it is contrary to the statutory provisions, which are loud and clear. It has also been contended that since the anti-dumping investigation and levy initiated in 2008 specifically mentioned CFL in CKD/SKD form, it has to be presumed that the said goods imported in the said form were not covered in the earlier investigation and levy made in 2002. We have already held that as per the wordings employed in the findings of DGAD and the notification imposing levy, CFL in CKD/SKD forms are also included in the anti-dumping levy, this argument is not sustainable and hence, we reject this contention. 5.11. The appellants have relied on the decisions in the case of Sony India Ltd., Philips India Ltd., Plaza Lamps and Tubes Ltd., Permalite Electricals (P) Ltd. and Delta Electronics (all cited supra). However, reliance on these decisions would not come to the rescue of the appellants as the facts of these cases are different and distinguishable. In the Sony India case, the imports took place in 94 consignments over a period of 22 months. In that context it was held that the goods as presented to Customs would not constitute TV units on which customs duty was leviable. In the facts of the case before us, the goods have been imported either in the same consignment itself or in consecutive consignments, within a short time span. In some cases, the consignments were split into two, one part imported in one port and the balance imported in another port. There is no dispute that the goods imported constituted all the components of the CFL and no additional material was required except for a simple process of soldering of the wires. In the Philips India case, relied upon by the appellant, the facts are different for the reason that the levy was on CFL with all electric components. Inasmuch as the goods imported were not complete CFL with all electric components, it was held that the Notification levying anti-dumping duty would not apply. That is not the case before us. There is no dispute that the goods imported either in a single consignment or in different consignments or at different ports, constitute complete CFL. Therefore, the facts of the Philips India case are distinct and can be distinguished on facts alone. Similarly, in Permalite Electricals (P) Ltd. case, the decision was by an Advance Ruling Authority and it is a well-settled position that the said decision will apply only in respect of the parties involved, i.e., between Permalite Electricals (P) Ltd. and the Commissioner of Customs concerned and the ratio of the said decision has no universal application. Similarly, in the case of Plaza Lamps and Tubes Ltd. (supra), the said decision was based on the earlier decision in Philips India case. As already held, Philips India case is distinguishable on facts and therefore, it follows that the ratio of Plaza Lamps and Tubes Ltd. also would not apply. 5.12. As regards the reliance placed on the decision of the honble High Court of Delhi in the case of Nav Durga Associates (supra), the said decision pertained to import of parts of dry battery cells, namely, empty zinc tube, round paper parts, asphalt sealing material, carbon rod, round plastic ring, metal caps, printed cover, plastic packing tube, packing material, empty cartons and empty plastic bags and all these parts fall under different Chapters such as Chapter, 85, Chapter 39, Chapter 48, Chapter 68 and so on and from these parts dry battery cells were manufactured by undertaking elaborate manufacturing processes. The anti-dumping duty Notification levied anti-dumping duty on dry battery cells imported from China falling under Chapter 85. It was in that context, it was held that since there is no separate anti-dumping duty on dry battery cell components of the kind imported by the Petitioners, the anti-dumping duty on parts cannot be upheld. That is not the position before us. In the present case, all the items under importation fall under the same Chapter 85 and under the same heading 8539 9010 as claimed by the appellant. They do not fall under different Chapters or different headings. Therefore, the facts of Nav Durga Associates case (supra) are completely different and distinguishable. 5.13. It is a settled position in law that while placing reliance on a decision, the factual situation needs to be considered as held in Bharat Petroleum Corporation Ltd. & another v. N.R. Vairamani & another - AIR 2004 SC 4778, wherein the honble court observed as follows:- Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the facts situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgment of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statutes; their words are not to be interpreted as statutes. 5.14. The same view was expressed by the Hon'ble Supreme Court in the case of Al Noori Tobacco Products - 2004 (170) ELT 135 (SC) where it observed that,- 13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
14. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. 5.15. In our considered view, the facts obtaining in the present case are substantially different from those obtaining in the various cases relied upon by the appellant. Further these decisions did not lay down any ratio to the effect that that separate rules of classification would apply for levy of different types of customs duty. Therefore, the reliance placed by the appellant on these decisions is of no consequence. 5.16. On the other hand, the ratio of the decisions in the cases of Sharp Business Machines Pvt. Ltd.; Phoenix International Ltd. and Maestro Motors Ltd. by the apex Court and the decisions of the Tribunal and in the case of Videomax Electronics and Hindustan Motors Ltd. affirmed by the honble apex Court appear to be more relevant and appropriate to the facts of the cases before us. In these cases, the goods were imported in SKD/CKD form by the same importers either in one consignment or in different consignments or through different ports or by sister concerns. The apex Court, in these cases, came to the conclusion that the appellant has resorted to complete fraud on the import policy and was doing indirectly what was not permitted to it directly and the obvious intention was to by-pass the EXIM policy. Therefore, the apex Court, invoking the provisions of Rule 2(a) of the General Interpretative Rules, classified the goods as forming complete item in SKD/CKD form and held that the goods were liable to Customs duty accordingly. Similar was the decision in the case of Videomax Electronics and Hindustan Motors Ltd. (supra). In the present case, dubious attempts have been made by the appellants to circumvent the anti-dumping levy. 5.17. An identical issue came up for consideration in the case of Roma International (supra) before this Tribunal and this Tribunal held as follows: 6. In the instant case, duty has been imposed on CFL falling under Chapter 85 of the Customs Tariff. Classification under a Customs Tariff is not a mere academic exercise. Its main purpose is determining applicability of a particular rate of duty. The General Interpretative Rules (GIR) are integral parts of the Customs Tariff and the classification of a product in a particular chapter or heading depends not only on the terms of the heading, section and chapter notes but also on the rules of interpretation. When the anti-dumping notification imposes duty on CFL falling under Chapter 85 of the Customs Tariff, such duty becomes leviable on all goods which get classified under Chapter 85 as CFL. In particular, in our view, an incomplete, unfinished, unassembled or disassembled CFL satisfying the strict criteria laid down in GIR 2a will get classified as CFL under Chapter 85 and would, therefore, attract anti-dumping duty. If GIR 2(a) is held to be not applicable for anti-dumping duty purpose, then it would be very easy to circumvent the duty by merely removing a small insignificant part of a CFL or importing the same separately and claiming that complete CFL has not been imported. We are of the view that such interpretation that would allow and encourage circumvention and defeat a WTO compatible contingency trade protection measure is not warranted. Moreover, the GIR is an integral part of the same Customs Tariff Act, 1985 under which (Section 9A) anti-dumping duty is also levied and therefore, there is no reason to doubt its applicability specially when the product coverage under the notification is with specific reference to Chapter 85 of the Customs Tariff.
7. We are, therefore, of the view that under the impugned notification, anti-dumping duty is leviable on goods which are complete CFL as well as goods which will merit classification as CFL under Chapter 85 in terms of GIR 2(a). As regards parts of CFL, the same would not attract anti-dumping duty as the same have not been covered specifically under the impugned notification. 5.18. In these circumstances, we are of the considered view that the goods imported by the three appellants, namely, M/s. Samay Electronics Pvt. Ltd., M/s. Wipro Ltd., and M/s. Amar Energy Systems merits classification as CFL in SKD/CKD form falling under Chapter 85 of the Customs Tariff Act and, therefore, they were correctly leviable to anti-dumping duty in terms of Notification 128/2002. 5.19. As regards the imports made by M/s. Sunora Electronics Industries, Morbi and M/s. Shell & Pearl Ceramics Ltd., these two imports are by different, independent legal entities and each one of them is an importer in its own right. Further, the goods imported by M/s. Shell & Pearl Ceramics Ltd., after importation were sold to M/s. Sunora Electronics Industries, Morbi. M/s. Shell & Pearl Ceramics Ltd. is not a dummy/front firm. They placed orders and paid for the goods which they imported and after importation, they sold the goods to M/s. Sunora Electronics Industries. Therefore, it is not possible to club these imports together and say that they constitute one single consignment so as to merit classification under CTH 8539 3110. Therefore, the principle of clubbing would fail in respect of the imports made by M/s. Sunora Electronics Industries and M/s. Shell & Pearl Ceramics Ltd. It might be possible that there was an understanding between the two parties. But such an understanding is not against any law and the transaction undertaken does not violate the provisions of the customs act in any way. Therefore, the demand for anti-dumping duty in respect of imports made by M/s. Sunora Electronics Industries and M/s. Shell & Pearl Ceramics Ltd. cannot be sustained in law and we hold accordingly. 5.20. An argument has been made that duty demand has been confirmed under Section 28 of the Customs Act, 1962 read with Section 9A of the Customs Tariff Act and provisions of the Customs Act would not apply. This contention is bereft of any logic in view of the retrospective amendment made to Section 9A of the Customs Tariff Act, 1975 by inserting sub-section (8) vide Finance Act, 2009. As per the newly introduced sub-section, the provisions of the Customs Act, 1962 and the Rules and Regulations made thereunder including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section ( that is, 9A) as they apply in relation to duties leviable under that Act (that is, Customs Act). Further vide Section 102 of the said Finance Act, validation of the actions taken under Section 9A of the Customs Tariff Act has also been provided as if the provision of sub-section ( 8) existed at all times and recovery shall be made of all such amounts of duty or interest or penalty, fine or other charges which have not been collected as if the amendment made by the said section had been in force at all times. This validation of the action is for the period commencing on/and from 01/01/1995 and ending with day on which Finance (No.2) Bill, 2009 got the Presidential assent. Therefore, there is no merit in the contention that Section 28 of the Customs Act cannot be invoked for recovery of anti-dumping duty which has escaped the levy. 5.21. There is also a contention raised by the appellants that extended period of time could not have been invoked in the present case. We do not agree with the contention for the following reasons. From the documents seized and the statements recorded, it is clear that the appellants intended to import complete CFL and they deliberately played a subterfuge to split the consignments and importing them under different consignments or through different ports. Such action on the part of the appellants is a fraud perpetrated on the exchequer. An act of fraud on Revenue is always viewed seriously. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. The decisions of the honble Apex Court in the case of Commissioner of Customs, Kandla vs. Essar Oil Ltd - 2004 (172) ELT 433 (SC)] and CC. V. Candid Enterprise -2001 (130) 404 (SC) refer. 5.22. Another contention raised is that the provisions relating to circumvention of anti-dumping duty were brought into the statute only in January, 2012 and therefore, no proceedings could be initiated if the importers tried to circumvent the anti-dumping duty. The ordinary meaning of circumvention is to go around, to by-pass or to avoid. It is different from tax evasion. There is a world of difference between tax avoidance and tax evasion. Tax avoidance implies complying with the provisions of law but defeating the intention of law by taking advantage of the loopholes in the law. Tax evasion means avoidance of tax through illegal means or fraud and is undertaken by employing unfair means. In the preceding paragraphs, we have already noted that the transactions involved fraud or unfair/illegal means by manipulation of documents and by artificial splitting of consignments with a clear intent to evade anti-dumping duty. Therefore circumvention and evasion cannot be equated. In this context, it is apt and appropriate to quote from the decision of a 5 member bench of the honble Apex Court in the case of Mc Dowell & Co. Ltd. vs. The Commercial Tax Officer [1986 AIR 649, 1985 SCR (3) 791] 6..It may, indeed, be difficult for lesser mortals to attain the state of mind of Mr. Justice Holmes, who said, "Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization." But, surely, it is high time for the judiciary in India too to part its ways from the principle of Westminister and the alluring logic of tax avoidance. We now live In a welfare state whose financial needs, if backed by the law, have to be respected and met. We must recognise that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that It stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taking statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. A hint of this approach is to be found in the judgment of Desai, J. in Wood Polymer Ltd. v. Bengal Hotels Limited where the learned judge refused to accord sanction to the amalgamation of companies as it would lead to avoidance of tax.
7. It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation as was done in Ramsay, Burma Oil and Dawson, to expose the devices. for what they really are and to refuse to give judicial benediction. This dictum laid down by the honble apex court command greatest respect and absolute compliance and adherence by all judicial authorities. 5.23. There are a few decisions cited by the appellants which we have not specifically adverted to. It is for the reason that in our considered view, the ratio of these decisions have no relevance to the facts of the case before us. 5.24. We find that the adjudicating authority has imposed fine on goods which are not available for confiscation. It is a settled position in law that fine can be imposed only when goods are available for redemption. In case the goods are not available for redemption, the question of imposing any fine would not arise at all. Accordingly, we set aside the redemption fine imposed by the adjudicating authority in respect of the goods which are not available for confiscation. However, in respect of goods which have been seized and released provisionally to the appellant under bond and bank guarantee, fine is leviable and accordingly, in those situations, the imposition of fine has to be upheld. As regards the penalties imposed, once the demand is confirmed under section 28 read with section 9A on account of fraud, penalty under section 114A is mandatory and cannot be waived. Therefore, the imposition of penalty on the appellants can not be faulted. In as much as penalty has been imposed on the importing firm under section 114A, which is quite substantial, we are of the view that separate penalties on the partner/Director/employees of the appellant firm is not warranted. Accordingly we set aside the penalties imposed on the officials of the appellant firms.
6. To conclude,- (1) We uphold the confirmation of anti-dumping duty demand by the adjudicating authority along with interest thereon in respect of M/s. Samay Electronics Pvt. Ltd., M/s. Wipro Limited and M/s. Amar Energy Systems, under the provisions of Section 28 and 28AB of the Customs Act, 1962 read with Section 9A of the Customs Tariff Act, 1975; (2) We also uphold the penalty imposed on the importing firms under section 114a of the said customs act. We also uphold the redemption fine imposed in respect of goods seized and released provisionally. However, in respect of goods not available for confiscation, there cannot be any question of redemption and hence no fine is imposable in such cases and accordingly, they are set aside. If quantification of the fine on goods seized and confiscated has not been done separately, the adjudicate authority shall do so and inform the appellant accordingly. (3) In the facts of the case, separate penalties on the Directors/Partners/Officials of the appellant-firms are not warranted and accordingly, we set aside the same; and (4) We set aside the demand for anti-dumping duty on M/s. Sunora Electronics Industries and the penalties imposed on the said firm and on M/s. Shell & Pearl Ceramics Ltd. and their officials as unsustainable in law. The appeals are disposed of in the above terms. (Operative part pronounced in Court on 20/01/2015) (Ramesh Nair) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as
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