(Surya Kant and Abhay S. Oka, JJ.)
Commr. of Customs _________________________________ Appellant;
v.
Shiwalya Spinning and Weaving Mil.P.LD _____________ Respondent.
Civil Appeal No(s). 7827/2009, decided on August 17, 2022
The Order of the court was delivered by
Order
1. The Civil Appeal is dismissed in terms of the Signed Order.
2. Pending application(s), if any, is/are disposed of accordingly.
CIVIL APPEAL NO. 7827/2009
Commr. of Customs __________________________________ Appellant
v.
M/s. Shiwalya Spinning and Weaving Mil.P.LD _________ Respondent
ORDER
3. The levy of anti-dumping duty on the acrylic fibre imported from United States of America, Thailand, and South Korea, in terms of Notification dated 24.10.1997, was the subject matter of the dispute between the parties before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) – decided vide order dated 10.09.2002. The Tribunal substantially accepted the claim of the Respondent-Assessee and held that the anti-dumping duty and penalty were wrongly confirmed by the Adjudicating Authority and the same were consequently set aside. The Tribunal, nevertheless, remanded the matter to the adjudicating authority for re-computing the antidumping duty payable by the Respondent to the permissible extent.
4. The first order of the CESTAT dated 10.09.2002, referred to above, was not challenged by the Appellant-Revenue and it attained finality. The question of application of the anti-dumping duty on the Respondent that was adjudicated upon on merits vide the said order, therefore, cannot be allowed to be re-opened, despite a vehement argument raised on behalf of the Appellant that the Government Notification was erroneously construed and the saving clause contained therein was overlooked by the CESTAT.
5. Upon remand, the Adjudicating Aurhtority reconfirmed its earlier order on the quantum of duty payable and penalty imposed thereon, and hence the matter once again reached the CESTAT in appeal. Vide the impugned second order by the CESTAT dated 16.02.2005, it has again remanded the case for re-quantification of the Duty, Interest, and the Penalty leviable on the respondent, keeping in consideration the following facts:
“(i) the appellants are liable to pay anti-dumping duty of the imported goods in terms of Notification No. 72/2001-CX dated 12.02.2001 at the rate of US $ 180 per kg whereas they had originally paid duty at the rate of US $ 9.73 per kg in terms of Notification No. 81/97 dated 24.10.1997 (ii) While calculating the CVD, the element of anti-dumping duty is to be excluded for arriving at the assessable value (iii) since the goods had been found to be of Thai origin and the department earlier enhanced the assessable value by treating the same as of Taiwan origin, the declared value of the goods by the appellants is to be accepted which was US $ 0.80 per kg. (iv) the penalty imposed on the appellants is not to exceed 25% of the re-calculated duty amount. The matter will be decided by the adjudicating authority after hearing the appellants.”
6. In our considered view, the above reproduced operative part of the CESTAT order dated 16.02.2005 causes no prejudice to the Appellant-Revenue as the same is in conformity with the first order of the Tribunal dated 10.09.2002, which has already attained finality.
7. No case to interfere with the impugned order of the Tribunal is therefore made out. The Civil Appeal is dismissed accordingly.
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