1. Heard both sides. The main dispute in this case relates to whether the impugned goods imported by the appellants are chargeable to antidumping duty under notification No. 138/2002-Cus dated 10/12/2002.
Shri Z.B. Nagarkar, learned consultant for the appellants states that the impugned goods are not complete Compact Fluorescent Lamps (CFL) and hence are not covered by notification No. 138/2002. He also cites the following two decisions of the Tribunal and the Advance Ruling Authority to contend that similar goods have been held to be not chargeable to antidumping duty:-Philips India Ltd. v. C.C., Mumbai - 2004 (166) E.L.T. 49 (Tribunal) (2) Advance Ruling No. AAR (Cus)/03/2004 dated May 13, 2004 in the case of M/s Permalite Electricals (P) Ltd, - 2004(94)ECC323(AAR) He also objects to reliance placed by the adjudicating authority on the American (NEMA) standards to hold the impugned goods to be CFL.
2. Shri A. Chopra, the learned J.D.R. for the department on the other hand supports the impugned order. He states that the appellants had deliberately sought classification of the impugned goods under sub-heading 8539.29 which was completely misleading as the said sub-heading applies to filament lamps whereas the impugned goods are fluorescent: lamps classifiable under sub-heading 8539.31. He quotes from the H.S. Explanatory Note and states that in the case of filament lamps, light is produced by a filament (metal or carbon) which is heated to incandescence by the passage of an electric current, the gas envelope (sometimes coloured) being either evacuated or filled with an inert gas under low pressure. He states that, on the other hand, the discharge lamps consist of a glass envelope or a quartz envelope, furnished with electrodes and containing, under low pressure, either a gas which becomes luminous under the influence of an electric discharge or a substance which gives off a vapour having similar properties; certain lamps may contain both a gas and a vapour producing substance.
He also cites from the Explanatory Notes to the HS the following:- "In some cases the internal wall of the lamps is coated with special substances which transform the ultra-violet rays into visible light thus increasing the efficiency of the lamps (fluorescent lamps).
Some lamps operate on high voltages, others on low.
(1) Gas discharge tubes containing gases such as neon, helium, argon, nitrogen or carbon dioxide, including flashing discharge lamps used for photography or stroboscopic examination.
(4) Gas filled dual lamps, in which the light is produced both by an incandescent filament and a gas discharge It is his contention that as imported, the impugned goods are CFL and hence, are chargeable to anti-dumping duty.
3. After hearing both sides and perusal of case records and the cited decisions, we find that the HS heading 85.39 is clearly split into two separate groups which separately cover filament lamps (8539.21, 8539.22 and 8539.29) and discharge lamps (8539.31, 8539.32 and 8539.39). The tariff description and the Explanatory Notes clearly indicate that the gas discharge tubes including fluorescent lamps are covered in the second group. As such, the adjudicating Commissioner has rightly rejected the claim of the appellants seeking classification of the impugned goods as filament lamps under sub-heading 8539.29. As regards the violation of the Indian Trade and Merchandise Marks Act, 1958 we find that the appellants have conceded before the original authority that the impugned goods do not have the name of the manufacturing country on the body of the impugned goods while pleading that this is a curable defect.
4. In regard to the chargeability of the anti-dumping duty, we find that notification No. 138/2002 mentions CFL falling under sub-heading 8539.31 while referring to the preliminary findings of the Designated Authority. However, while imposing antidumping duty, reference has been made to CFL falling under Chapter 85. As such, we are of the view that any goods which conforms to the description "Compact Fluorescent Lamps falling under Chapter 85 of the First Schedule to the Customs Tariff Act, 1985" and originating in or exported from the specified countries would attract antidumping duty at the specified rates.
5. An anti-dumping notification is different from an exemption notification. The latter grants exemption from duty which is otherwise leviable under the tariff and hence needs to be interpreted strictly not to confer undue benefit on one who is not eligible for the exemption. Hence, any person claiming an exemption must satisfy the conditions imposed under the relevant notification. On the other hand, an antidumping notification imposes a duty on dumped articles. It is in the nature of a contingency trade protection measure, the sole purpose of which is to protect domestic industry against unfair competition in the form of dumping. Such notifications must not, therefore, be interpreted in a way which results in its circumvention or defeats its purpose.
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 part 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 antidumping 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 2(a) will get classified as CFL under Chapter 85 and would, therefore, attract antidumping duty. If GIR 2(a) is held to be not applicable for antidumping 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 Custom 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, antidumping 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 antidumping duty as the same have not been covered specifically under the impugned notification.
8. The appellants have claimed that the impugned goods are similar to those considered in the cited cases by the Tribunal and the Advance Ruling Authority. In the case of Philips India Ltd (supra), the Tribunal has held that "what is imported are only parts of CFL" (para 5). In the case of M/s Permalite Electricals (P) Ltd (supra), the Advance Ruling Authority has considered a case where the applicants intended to import only one of the 6 components of the CFL and what was not to be imported constituted a major portion in terms of value and technology. On the other hand, the adjudicating Commissioner in the present case has held the impugned goods to be pin based CFL distinct from screw based self-ballasted CFL based on NEMA (National Electrical Manufacturers Association of the US) standards, the application of which has been challenged by the appellants.
9. As such, we are of the opinion that the case needs to be re-examined with reference to the claim of the appellants that the goods under import are only parts of CFL. The appellants should be asked to furnish details of the missing parts to consider the coverage of impugned goods under the antidumping notification in the light of our views above. As regards the coverage of pin type CFL under the antidumping notification, we feel that it would be appropriate for the adjudicating Commissioner to obtain necessary clarification from the Designated (anti-dumping) Authority who would have considered the scope and coverage of like products while making a determination prior to issue of the antidumping notification. We note that antidumping measures are administered jointly by the Designated Authority in the Department of Commerce and the Revenue Department. We are of the view that they must act in tandem in ensuring that what should be charged to antidumping duty must not escape such duty and what is intended to remain outside such levy must so remain. Consultation as suggested above is absolutely essential to ensure that both authorities do not act in such a way that action of one frustrates that of the other. We also leave it open to the adjudicating Commissioner to obtain the views of affected domestic industry if so warranted to reach a just conclusion regarding coverage or otherwise of the impugned goods under the antidumping notification.
10. We, therefore, set aside the impugned order and remand the matter for fresh adjudication. The appellants shall be allowed a reasonable opportunity of hearing as well as access to any opinion obtained by the adjudicating Commissioner from the Designated Authority and/or the Domestic industry.