Custom, Excise & Service Tax TribunalC.C., Amritsar vs Sharman Woollen Mills on 23 June, 2009CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Block No.2, R.K.Puram, New Delhi

COURT-III

 Date of hearing/decision: 23.6.09
   
 Customs Appeal No.521 of 2006

Arising out of the order in appeal No.69/Cus/CHD/06 dated 8.5.06 passed by the Commissioner of Central Excise (Appeals), Chandigarh.

C.C., Amritsar					.			Appellant
 

Vs.

Sharman Woollen Mills				.		     RespondentFor Approval and Signature:Honble Mr. M. Veeraiyan,  Member (Technical)
Hoble Mr. P.K. Das, Member (Judicial)1Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?No2Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?3Whether their Lordships wish to see the fair copy of the Order?Seen4Whether Order is to be circulated to the Departmental authorities?Yes

Appearance:Shri S.R. Meena, Authorized Departmental Representative (DR) for the Revenue  and Shri Sudhir Malhotra, Advocate for the respondent

Coram:  Honble Mr. M. Veeraiyan, Member  (Technical)
		    Honble Mr. P.K. Das, Member (Judicial)
		     
		Oral Order No.____________________

Per  M. Veeraiyan:This is an appeal by the Department against the order of Commissioner (Appeals) No. 69/Cus/CHD/06 dated 8.5.06.2.	Heard both sides.3.	The respondent, admittedly, imported bright dyed 3.3 DTEX Acrylic Tow  falling under sub-heading No.5501.30 of the Customs Tariff Act and cleared them duty free by producing advance licence. Anti-dumping duty is leviable on import of acrylic fibre falling under sub-heading No.5501.30 or 5503.30, in terms of  Notification No.133/2001-Customs dated 31.12.2001. The original  authority while dealing with the refund claim, held that the acrylic tow imported by the respondent has to be considered as acrylic fibre and therefore, the  same attracts anti-dumping duty, in terms of Notification No.133/2001-Cus cited supra. On appeal by the party, the Commissioner (Appeals) held that the acrylic fibre and acrylic tow are different goods and that anti-dumping duty was chargeable only on acrylic fibre and not on acrylic tow and accordingly, set aside the order of the original authority.4.	Learned SDR submits that the acrylic fibre and acrylic tow are basically  the same items and they differ only on length, size. The Notification imposing anti-dumping duty refers to both sub-heading No.5501.30 , 5503.30 and therefore,  the implication is that acrylic tow and acrylic fibre should be treated as one and the same. Otherwise, levy under sub-heading 5503.30 under Notification No.133/2001-Cus., will be inoperative. Therefore, he seeks setting aside the order of the Commissioner (Appeals) and restoration of the order of the original authority.5.	Learned Advocate reiterates the finding  and reasoning of the Commissioner (Appeals).6.	We have carefully considered the submission  from both sides. The relevant findings of the Commissioner (Appeals) accepting the partys appeal is reproduced below:	The main contention of the appellant is that they have imported acrylic tow falling under sub-heading 5501.30 ofCustom Actvide Bill of Entries No.353 dated 19.8.02, 355 dated 19.8.02, 372 dated 24.8.02, 373 & 374 dated 24.8.02 and 375 dated 28.8.02 and the department pressed them to deposit the anti-dumping duty on these goods amounting to Rs.14,10,698/- + interest amounting to Rs.2,66,191/- under protest. As per Notification No.133/2001-Cus dated  31.12.2001, made final vide Notification No.104/2002 dated 9.2.2002 anti-dumping duty was chargeable on acrylic fibre originate or imported from U.K., Germany, Bulgaria & Brazil, but no such duty is chargeable on acrylic tow i.e. the goods  imported by the appellant. This view has also been confirmed by the CESTAT in the case of Beeta Exports v. C.C.ASR, 2003 (153) ELT 621 whereas it has been held that Acrylic fibre and Acrylic tow  are different goods. The learned Adjudicating authority erred in not appreciating said factual position. He has  not given any findings with regards to the said submission of the appellant.
  The above contention of the appellant is quite correct and convincing in as much as the acrylic fibre and acrylic two are two  different goods and the anti dumping duty is chargeable only on acrylic fibre and not on acrylic tow.The further contention of the appellant that the duty in question was got deposited  by the department under pressure , after expiry of limitation period, i.e. the Bill of Entries were assessed from 19.8.02 to 26.8.02 and the duty was got deposited on 3.12.2003. I fully agree with this contention of the appellant in as much as  the duty deposited after the expiry of one year were clearly time barred  and further the show cause notice dated 31.12.04 issued for recovery of said duty amount was also time-barred, because it is neither a case of any suppression of facts nor any wilful attempt to evade any duty when no duty is chargeable on the goods in question held  by the CESTAT in para 5.2 of  the order supra, which clearly says that anti-dumping duty imposed on acrylic fibre by Notification No.81/97-Cus cannot be imposed  on acrylic tow. Therefore, duty deposited by the appellant is refundable to them as the doctrine or unjust enrichment is not applicable when duty paid subsequent to clearance of goods. This view has been taken by the CESTAT in the case of Gujarat State Fertilizer vs. C.C.E.- 2005 (180) ELT 607 TM.The order in original rejecting the refund claim is set aside.7.	We are dealing with the case of levy of anti-dumping duty by a Notification issued by the Central  Government underSection 9A(2)of the Customs Tariff Act on the basis of  the findings of the  designated authority. This levy is imposed  after detailed investigation as prescribed under special law and after hearing the concerned parties including  the importer, domestic industries and the exporter and other interested parties. The levy  cannot be based on implication. The levy is clearly on acrylic fibre . Customs Tariff 5501 at 4 digit level refers to acrylic tow and 5503 refers to  acrylic fibre. Therefore, there is  conscious distinction between the acrylic tow and acrylic fibre. Notwithstanding the fact that sub-headings 5501.30 and 5503.30  have been  mentioned in the notification, the levy is only on import of acrylic fibre. It cannot be extended to acrylic tow by any implications.8.	In view of the above, we  are in agreement with the above finding and reasoning adopted by the Commissioner (Appeals). No valid ground is adduced to interfere with the said finding.9.	Appeal filed by the Department is, therefore, rejected.(M. Veeraiyan)
							     Member (Technical)


							 	   (P.K. Das)
							        Member (Judicial)
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