M.V. Ravindran, J.
1. All these appeals are directed against OIO No. OIO No. KDL/ COMMR/42/2012-13 dtd 30.11.2012. Since all these appeals raise a common issue of law and facts, they are being disposed off by a common order. By the common order, Adjudicating Authority has confirmed the demand of anti-dumping duty on appellant M/s Possco India Delhi Steel Processing Centre (herein after referred to as main appellant) interest thereof and imposed penalty on the main appellant as well as other appellants in these appeals. For facts of the issue, we take up the appeal of the main appellant.
2. Filtering out the unnecessary details, the relevant facts which arise for consideration are the main appellant herein was regular importer of the Stainless Steel Cold Rolled Coils. The said products were imported by the appellant during the period 2009-12 and appropriate customs duty was discharged. All the Bills of Entry during the relevant period were finally assessed by the lower Authorities after physical examination of the goods. Govt of India on an application made by the domestic industries, initiated an investigation for imposition of anti dumping duty on Cold Rolled Flat Products of Stainless Steel and definitive anti dumping duty were imposed by Notification No. 14/2010-customs dtd 20, Feb. 2010. Subsequently, after initiating a mid term review, the designated authority issued corrigendum which was notified by Notification NO. 86/2011-Customs wherein the scope of the subject goods was expanded as also extending the tolerance limit of the products under consideration on which anti-dumping duty was imposed. The Customs authorities seized the consignments imported by the appellants for which Bills of Entry were filed on 14.10.2011 and released the same provisionally. After conducting investigation and recording various statements, DRI issued the Show Cause Notice dtd 13.4.2012 to main appellant as well as the other appellants. All the appellants herein contested the Show Cause Notice on merits as well as on jurisdiction of the DRI issued Show Cause Notice. The Adjudicating Authority after following due process of law, held against all the appellants. Vide the impugned order, the Adjudicating Authority, confiscated the goods which were seized and provisionally released, imposed redemption fine in lieu of the release of goods, confirmed anti-dumping duty on the consignments imported earlier along with interest, and also imposed penalties.
3. Shri Laxmikumaran along with advocates Shri Atul Gupta, Shri Jigar Shah and Shri Manish Jain appeared for main appellants and employees of the main appellant, advocate Shri P V Seth appeared on behalf of Cargo Clearing Agency.
4. Learned Counsel after taking us though the procedure followed by the designated authority for imposition of definitive anti dumping duty as per the provisions of Section 9A of the Custom Tariff Act 1975 would submit that the Anti Dumping duty which was imposed by the designated authority was notified by the Govt of India vide Notification No. 14/2010-Customs dtd Feb. 20, 2010. He would take us the said notification and submit that the said notification had specifications of the products sought to imported for imposition of anti dumping duty, i.e., Cold Rolled Flat products of Stainless Steel exported out of country and of specific exporter if the same has the width of 600 mm up to 1250 mm. He would also draw our attention to the exclusions indicated in the said notification and more specifically to the grades IP Ferritic Grades EN 1.4512. It is his submission that the main appellant had imported only the Cold Rolled Flat products of Stainless Steel during the material period of Grade EN 1.4512. He would then submit that on an application moved by the domestic industries, the designated authority conducted a mid term review and in the said mid term review, the designated authority issued corrigendum to notification No. 14/2010 and from the exclusion deleted Steel of Grade EN 1.4512 and also vide the mid term review brought in tolerance limit of (+) 30 mm of Cold Rolled Flat Products width 1000 mm or more but not exceeding 1250 mm, this was made effective by the Govt of India vide Notification No. 86/2011 customs dated 6th Sept 2011. After explaining the nuances of the said mid term review and the effect of the same, he would submit that the exclusion of the category of the particular grade will be effective from the date i.e., 7th Feb. 2011 and the tolerance limit which has been brought into play by the notification would not effect the goods imported by the main appellant. After making this submission he would draw our attention to the findings recorded by the Adjudicating Authority and submit that the Adjudicating Authority has erred in applying the notification retrospectively as regards the Cold rolled Flat Products imported by the main appellant of Grade EN 1.4512 and also the tolerance limit made applicable for the goods imported seems to be incorrect. It is his submission that once the designated authority conducts a mid-term review, it is quasi-judicial function and any findings notified thereof which are made effective by issuance of Notification by the Dept. of Revenue would be effective from the date the said findings are notified. It is also his submission that the tolerance limit as brought into play has to be on the positive side only, which would mean that any goods which are imported having width less than 1250 mm will be covered and any goods which are imported of width more than 1250 mm will be excluded. For this submission, he would draw our attention to the findings recorded by the designated authority in the mid-term review and submit that the authority specifically recorded that flat cold rolled products of Stainless Steel of width beyond 1250 mm were rightly excluded from the purview of definition of anti-dumping duty. It is his submission that when the original proceedings of anti-dumping duty were initiated, they excluded the products which were having width of more than 1250 mm from the scope for levy of anti-dumping duty. He would then submit that the retrospective application of the notification by the Adjudicating Authority is uncalled for and submits that the said notification would come into play only from the date when they are notified is the law settled by the highest court. It is also his submission that the Adjudicating Authority has held that the appellant had mis-declared their product with intention to evade anti- dumping duty is also a wrong finding recorded by him, in as much as the bills of entry which were filed clearly described the products which were imported; the said products were tested and found to be of the same grade and the said bills of entry were assessed finally by the customs authorities. It is his submission that in such a situation, there cannot be an allegation of mis-declaration and duty cannot be demanded by invoking extended period. He would submit that the demand of the differential definitive anti-dumping duty be set aside confiscation ordered of the goods which were provisionally released be also set aside and the penalties imposed on the main appellant as well as the employees of the main appellant be also set aside.
5. Advocate Shri P V Sheth appearing on behalf of the appellant Cargo Clearing Agency, would submit that he adopts the submissions made by the Learned Counsel on the merits and also submits that there was no reason for imposing penalty on the clearing agent or the clearing agency as they had correctly filed all the documents with the customs authority alongwith Bills of Entry and the said goods after examination, were assessed finally hence there no cause or reason for imposition of penalty on the appellant under Customs Act 1962.
6. We have considered the submissions made at length from both the sides and perused the records.
7. We find that the issue to be decided by us is whether the Stainless Steel Cold Rolled Sheets which have been imported by the appellant are covered under Notification 86/2011cus for imposing anti dumping duty or otherwise as also whether the corrigendum issued on Feb, 7, 2012 is applicable retrospectively for the goods imported by the appellant having specifications of Ferritic Grade 1.4512.
8. The factual matrix is that the appellant had imported Cold Rolled Flat Stainless Steel products of Grade EN 1.4512 and declared the same as such, also declared the width of the said Stainless Steel Flat Products as more than 1250 mm. The Adjudicating Authority has come to the conclusion that corrigendum issued by the designated authority after the mid term review of anti-dumping duty initiated would be applicable from the date the anti-dumping duty was imposed.
9. The findings of the Adjudicating authority in applying the corrigendum dtd Feb. 7, 2012 and also applying the tolerance level fixed by Notification No. 86/2011-customs from the date of the imposition of anti dumping duty is not in accordance with the law for more than one reason.
9.1. Firstly, we find that the dimensions which were declared by the appellants on the products which were imported were indicated as the products width more than 1250 mm. The seized goods were put to examination and on examination it was found that the goods were having maximum width as 1278 1279 mm. In our considered view, if the physical examination of the goods as indicated having average width of the goods imported by the appellant is 1278 1279 mm, it is a clear indicator that the said products were not covered for imposition of definitive anti dumping duty. It is our view, can be deduced from the findings recorded by the designated authority in the mid term review conducted by him wherein he had concluded as under:
21. On the basis of examination of the issues raised by various interested parties including the petitioner in oral hearing held on 14.3.2011 followed by their written submissions and rejoinders and the evidence submitted by the petitioner vide their 55 letters dated 23rd November 2009 and dated 14th July 2011 and on the basis of examination of post disclosure submissions of interested parties, the Authority has held that:
a). The subject goods of width beyond 1250 mm were rightly excluded from the ambit of anti-dumping duty as held in the Authoritys original findings No.14/6/2008-DGAD dated 24.11.2009. The said exclusion is maintained in view of the foregoing examination by the Authority.
b). As regards the exclusion of other specific grades, the Authority has followed the broad principles set out in the original final findings of the subject investigation dated 24.11.2009 and has taken into account the evidence of actual manufacture/supply placed on record by the petitioner including the evidence furnished by the petitioner vide their submission dated 23.11.2009, which was not considered in the original findings, and the technical evidence of equivalence of certain grades actually supplied by the petitioner during the relevant period to the grades excluded by the Authority. Accordingly, the Authority considers inclusion of grades 420, 430BA, EN 1.4512, duplex grades 2205 and 2304 in the scope of the product under consideration for the purpose of imposition of anti-dumping duty as the same were actually supplied during POI by the petitioner. However, the exclusion in respect of other specific grades, namely, grades AISI 420 high carbon, 443,441, EN 1.4835, 1.4547, 1.4539, 1.4438, 1.4318, 1.4833 and EN 1.4509, in the original final findings, is maintained in view of the fact that the evidence of actual supply of those grades during POI has not been furnished by the petitioner nor any evidence in support of actual manufacture of these grades has been submitted.
c). In the light of the above, the Authority will notify a corrigendum to the final findings No.14/6/2008-DGAD dated 24.11.2009.
(emphasis is supplied)
It can be noticed from the above that the designated authority had specifically stated that the subject goods of width beyond 1250 mm is excluded from imposition of anti-dumping duty and same is maintained in mid-term review. If that being so, we find that the Adjudicating Authority could not have applied the tolerance level as prescribed by the Notification No. 86/2011-Cus to the products imported by the appellants.
9.2.Secondly, we also find that the designated authority while recording the findings on definitive anti-dumping duty had specifically excluded the Cold Rolled Flat products of Stainless Steel of grade EN 1.4512 from the purview of the definitive anti dumping duty. In our view, the corrigendum issued by the designated authority and notified by the Dept of Revenue in the Gazette of India (Extraordinary) on Feb. 2012 can be made applicable only for the goods for which bills of entry are filed on or after Feb. 7, 2012. The said corrigendum cannot be applied retrospectively for the goods which have already landed into and for which appropriate Bill of Entry were filed for the reason that an importer who has imported goods on which no anti-dumping was leviable cannot be saddled with the same by issuing a corrigendum and that too in a full fledged mid-term review done by designated authority.
9.3.Thirdly, we also find that an identical issue was raised in the case of Mascot international vs Commissioner of Customs (Exp.) - 2013.TIOL 1426-cestat-Mum. wherein co-ordinate Bench in the said case was considering the very same issue and has held in the favour of the assessee therein. With respect, we reproduce the relevant paragraphs.
8). On hearing both sides, we find that the issue before us is that whether stainless steel cold rolled Coils having width of 1256 MM to 1259 MM are covered under Notification 86/2011 for imposing anti dumping duty or not. To know whether the goods are leviable to anti-dumping duty we have to go to Notification 14/2010 dated 20.02.2010 wherein anti dumping duty was leviable on cold rolled flat products of stainless steel of width of 600 MM upto 1250 MM of all series further worked than cold Rolled (cold reduced) with a thickness of upto 4 MM. From the said Notification it means that cold rolled flat products of stainless steel of width of 600 MM up to 1250 MM are leviable for anti-dumping duty. A mid-term was taken by the Designated Authority on 8.6.2011 in the background that
a). No engineering product can be produced to the exact dimension without tolerance.
b). The sheets in coils as produced on the mill does not conform to any definite contour and will have edge imperfections like chapped, thin and damaged edges. Therefore, width are never exactly the same as 1250 MM but are invariably produced in higher widths.
c). In the absence of any tolerance in the recommendations and in the corresponding customs Notification, the products of width 1250 MM or lower are being declared as having width of 1251 MM to 1300 MM are thereby the anti dumping duty is circumvented.
d). There are larger number of consignments where the width has been declared a 1251 MM or marginally above the 1250 MM limit specified in the final finding, thereby escaping anti-dumping duty.
In the above said background the Designated Authority has examined and found that the product under consideration in the final findings of the original investigation was defined as cold rolled flat products of stainless steel of width of 600 MM up o 1250 MM of all series further worked than cold rolled (cold reduced) with a thickness of upto 4MM. The basic ground for seeking mid-term review by the domestic industry was that in absence of specification of tolerance even width upto 1250 MM escaped duty as imported widths.
9). It is observed by the Designated Authority that the present review is not for enhancement of he product scope is or clarification with regard to the prescribing tolerance in respect of the width of the product under consideration and no addition to new product has been requested. Thereafter the said Notification came into force which prescribed that whereby width tolerance of (+) 30MM was applied to mill-edged cold rolled flat products of stainless steel for specified width of 1000 MM or more, but not exceeding 1250 MM.
10). From the above examination, we find that the scope of the examination was not for enhancement of the product scope ie., width exceeding 1250 MM and product is defined as cold rolled flat products of stainless of weight of 600 MM upto 1250 MM. From the said scope, the intent of the levy of anti-dumping duty by the Designated Authority is very much clear that the product upto 1250 MM is liable for anti-dumping duty; that the Notification 86/2011 was issued in he background that in the absence o tolerance in the recommendation of corresponding Notification the products of width 1250 MM or lower are being declared as having width of 1251 MM to 1300 MM and thereby the anti-dumping duty is circumvented. It is further found that larger number of consignment where the width has been declared as 1251 MM or marginally above the 1250 MM limit specified in the final finding, thereby escaping anti-dumping duty. Therefore, this Notification came to levy for tolerance of (+) 30 MM in he width.
11).From the above, it is clear that in intent of Designated Authority was not to levy anti-dumping duty on the products having width more than 1250 MM. The amending Notification on mid-term review was for the consignment wherein the actual width is less than 1250MM who declared the consignment as 1251 MM or more to escape anti-dumping duty. In those cases tolerance of (+) 30 MM was granted. Therefore tolerance is to be applied on the products having width less than 1250 MM and declared as 1251 MM to 1300 MM. It is not the intent of the Designated Authority to levy duty on 1280 MM. If it is so, in th Notification it would have been declared that the product upto 1280 mm are leviable for anti-dumping duty and no tolerance for (+) 30 MM was given.
With these observations, we find that any product having width more than 1250 MM are not leviable for anti dumping duty. Admittedly, in this case the width of the product on physical examination was found between 1256 MM to 1259 MM. Therefore admittedly the width of the product in question is more than 1250 MM. Therefore Notification 14/2010 amended to Notification 86/2-11 is not applicable to the appellant. As Notification is not applicable to he appellant, therefore question of levy of anti-dumping duty of the goods imported by the appellant does not arise. Accordingly, demand in the impugned order is not sustainable.
13. In that view, we set aside the impugned order and allow the appeal with consequential relief.
10. We also find that in identical issue subsequently also, in the case Arti C Bhuta, Chetan M Bhuta - 2013 TIOL 1628 cestat-Mum Coordinate Bench followed the order of in the case of Mascot International (Supra) and allowed the appeal filed by the assessee therein. In our view, the ratio laid down by these two decisions of the Tribunal on an identical issue and in respect of the very same anti dumping duty and notification No. 86/2011 cus is directly applicable in this case. We are of the view that the impugned order which confirms the demand of the duty, confiscates the goods imported by the appellant is unsustainable and is liable to be set aside and we do so.
11. Since we have set aside the impugned order on merits itself, we are of the view that there is no reason for visiting the other appellants with any penalty. We also not recording any other findings on the submission made by both sides.
12. For the foregoing reason, the impugned order is set a aside and the appeals are allowed with consequential relief.