The Bangalore bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that anti-dumping duty is leviable on green reflective glass for the period from 4th January 2009 to 22nd May 2009.
The appellant Puthuval Associates was a proprietary concern engaged in the business of trading of Reflective Glass falling under Chapter 70 of Customs Tariff Act, 1975. The appellant had imported Dark Green Reflective Glass of 4 mm thickness from one M/s. Qingdao Runwei Glass Co. Ltd., PRC China and filed Bills of Entry.
The Bills of Entry had been assessed by the Department and anti-dumping duty was levied and collected observing that even though Notification No.165/2003 -Cus. dt. 12/11/2003 excluded levy of anti-dumping duty on the item viz. reflective glass; however in Notification No.4/2009-Cus dt. 06/01/2009, there has been no such exclusion for reflective glass. Consequently, the duty of Rs.10, 32,527/-; No.10, 32,527/- and Rs.3, 03,440/- has been confirmed by the Adjudicating authority. Aggrieved by the said order, the appellants preferred appeals before the Commissioner (Appeals), who in turn, rejected their appeals.
Mr. Aditya Venugopal, representing the appellants submitted that the goods in question i.e. Dark Green Reflective Glass falls outside the scope of levy of anti-dumping duty under Notification No.4/2009-Cus. He has submitted that the said notification has been read and understood in the light of Section 9A of the Customs Tariff Act, 1975 Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
Further, on the basis of complaint by domestic industry, anti-dumping investigation concerning imports of float glass from China and Indonesia has been initiated by the Government of India vide Notification No.14/19/2002-DGAD and consequently Customs Notification No.165/2003 dt. 22/08/2003 was issued by the Government of India whereby reflective glass and processed glass meant for decorative, industrial or automotive purposes were excluded from the purview of anti-dumping duty for a period of 5 years.
It was observed that the review proceedings were initiated on 13/12/2007 and the comments of the designated authority dated 02/12/2008 recommended continuation of anti-dumping duty on goods as provided in Notification No.165/2003. Pursuant to the sunset review, Notification No.4/2009 dated 06/01/2009 was issued. However, in the said notification, the term “reflective glass” was not mentioned even though the designated authority recommended to carry out the antidumping duty strictly on the goods mentioned under Notification No.165/2003.
Per contra, Mr. Rajiv Kumar Agrawal, representing the revenue reiterated the findings of the Commissioner (Appeals). He has submitted that all the imports are reflective float glass from China during the period January 2009-May, 2009. He has submitted that anti-dumping duty was leviable on the goods as per Notification No.4/2009-Cus dt. 06/01/2009 which amended earlier Notification No.165/2003-Cus. Even though Notification No.165/2003 excluded reflective glass from its scope, however, there was no such exclusion for reflective glass in Notification No.4/2009 dt. 06/01/2009.
Referring to the judgment of the Kerala High Court in the case of K. Kochumon vs. UOI has submitted that the High Court has observed that prima facie, he was not satisfied that reflective glasses are excluded from the description of float glass in respect of which anti-dumping duty was levied. Accordingly, he has rejected the contention of the petitioner that levy of antidumping duty is without jurisdiction and dismissed the writ petition.
The bench found that on the basis of the objections of the All India Float Glass Manufacturers Association, anti-dumping duty was imposed on “float glass of thickness 2mm to 12mm (both thickness inclusive) of clear as well as tinted variety (other than green glass) but not including reflective glass, processed glass meant for decorative, industrial or automotive purpose”, by issuance of Notification No.165/2003 dt. 12.11.2003 w.e.f. 07.01.2003.
During the intervening period i.e. 06.01.2009 to 22.05.2009, green reflective glass was not mentioned under the exclusion category of the Notification No.4/2009-Cus dt. 06/01/2009 but mentioned in the amending Notification No.51/2009-Cus. dt. 22/05/2009. The contention of the appellant that it was a mistake on the part of the Government by not specifically mentioning exclusion of green reflective glass from the scope of the said notification.
In the present case, the two member bench of the tribunal comprising D.M Misra (Judicial member) and R. Bhagya Devi (Technical member) concluded that reflective glass was not found in the Notification No.4/2009-Cus. dated 06.01.2009 for exempting them from anti-dumping duty, the question of extending the benefit does not arise.
The Commissioner (Appeals) has rightly held that no attempt can be made to infer the motive or meaning of the Notification other than what is emanating from the plain language of the Notification. Therefore, CESTAT upholds the order of the Commissioner (Appeals) and dismisses the appeal filed by the appellants.
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