SAMAY ELECTRONICS P. LTD. AND ORS. Vs. COMMISSIONER OF CUSTOMS
LAWS(CE)-2015-1-130
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on January 20,2015

Samay Electronics P. Ltd. And Ors. Appellant
VERSUS
COMMISSIONER OF CUSTOMS Respondents


Referred Judgements :-

ROMA INTERNATIONAL V. COMMISSIONER OF CUSTOMS [REFERRED TO]
HINDUSTAN MOTORS LTD. V. COMMISSIONER OF CUSTOMS [REFERRED TO]
SURANA METALS AND STEELS (I) LTD. V. CCE [REFERRED TO]
NOV DURGA ASSOCIATES V. UNION OF INDIA [REFERRED TO]
S KRISHNAN VS. STATE OF MADRAS [REFERRED TO]
MCDOWELL AND COMPANY LIMITED VS. COMMERCIAL TAX OFFICER [REFERRED TO]
INDIA CEMENT LIMITED VS. STATE OF TAMIL NADU [REFERRED TO]
HYDERABAD INDUSTRIES LIMITED VS. UNION OF INDIA [REFERRED TO]
KOLHAPUR CANESUGAR WORKS LIMITED VS. UNION OF INDIA [REFERRED TO]
COMMISSIONER OF CUSTOMS VS. CANDID ENTERPRISES [REFERRED TO]
DISTRICT MINING OFFICER VS. TATA IRON AND STEEL CO [REFERRED TO]
BHARAT PETROLEUM CORPORATION LIMITED VS. N R VAIRAMANI [REFERRED TO]
COLLECTOR OF CUSTOMS VS. MAESTRO MOTORS LTD [REFERRED TO]
WOOD POLYMER LIMITED IN RE AND BENGAL HOTELS PRIVATE LIMITED VS. IN RE [REFERRED TO]
PHILIPS INDIA LTD VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
SHREE BHAGWATI STEEL ROLLING MILLS VS. COMMISSIONER OF CENTRAL EXCISE [REFERRED TO]
MITTAL ALLOYS VS. COMMISSIONER OF CENTRAL EXCISE [REFERRED TO]
ANCHOR DAEWOO INDS. LTD. VS. COMMISSIONER OF CUSTOMS, KANDLA [REFERRED TO]
TATA MOTORS LIMITED VS. COMMISSIONER OF C. EX., JAMSHEDPUR [REFERRED TO]
WIPRO LTD. VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
M/S. DELTA ELECTRONICS VS. COMMISSIONER OF CUSTOMS CENTRAL EXCISE, MEERUT [REFERRED TO]
COMMISSIONER OF CUSTOMS VS. PLAZA LAMPS AND TUBES LTD. [REFERRED TO]
PLAZA LAMPS AND TUBES LTD VS. COMMISSIONER OF CUSTOMS [REFERRED TO]


JUDGEMENT

P.R.CHANDRASEKHARAN - (1.)THERE are ten appeals arising out of the four orders -in -originals, two of them passed by the Commissioner of Customs (Imports), Mumbai, the third passed by the Commissioner of Customs (General), Mumbai and the fourth passed by the Commissioner of Customs (Imports), Nhava Sheva.
(2.)The appellants are M/s. Samay Electronics Pvt. Ltd., M/s. Wipro Limited, M/s. Amar Energy Systems, M/s. Shell and Pearl Ceramics Ltd., M/s. Sunora Electronics Industries and their partners/employees. The issue involved in all these appeals is common and it relates to levy of anti -dumping duty on compact fluorescent lamps (CFL) imported from China in SKD form and in different consignments and at different ports. The facts involved in each of these cases are discussed below:
(1) Samay Electronics Pvt. Ltd.: During the period from November, 2004 to February, 2007, M/s. Samay Electronics Pvt. Ltd. ("Samay" in short) had imported 106 consignments of compact fluorescent lamps from China in SKD form without payment of anti -dumping duty leviable on compact fluorescent lamps vide Customs Notification No. 138/2002 -Customs, dated December 20, 2002.

(a) As part of the investigation, officers of the DRL Ahmedabad visited the office and factory premises of M/s. Samay on November 28, 2006. During the visit, it was found that M/s. Samay was importing glass tubes with base from China at Kandla port and holders with wire and populated PCBs for compact fluorescent lamps at Mumbai. The compact fluorescent lamps were being assembled at their factory by soldering the above goods. All the components put together constituted compact fluorescent lamps in SKD form and as per rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975, the same merited classification as compact fluorescent lamps under Customs Tariff Heading 8539 31 10 and not as components of compact fluorescent lamps under Customs Tariff Heading 8539 90 10 as claimed by the appellant. During the investigation 1,58,257 pieces of compact fluorescent lamps of different watts in SKD condition was seized by the officers under a panchanama dated November 28, 2006 as it appeared that the same were liable confiscation.

(b) Statements of Shri Vasantbhai Chunibhai Patel, chief engineer of M/s. Samay was recorded on December 8, 2006, January 10, 2007 and April 20, 2007 wherein he stated that they had assembled the compact fluorescent lamps by the soldering the glass tubes with base imported at Kandla and holders with wire and populated PCBs imported at Mumbai and they had not used any other material other than the above imported components. He also confirmed that Shri Rameshbhai Patel, director of the appellant -firm, managed the imports of components of compact fluorescent lamps and he had accompanied Shri Rameshbhai Patel on his visit to China for the purpose of import of components of compact fluorescent lamps. He also confirmed that no written contracts were made and only verbal orders were given at the time of negotiations with the suppliers. In his statement given before the investigating agency on January 4, 2007 and May 14, 2007 Shri Rameshbhai Patel, director of the appellant -firm stated that they were importing components of compact fluorescent lamps and for that purpose, he had visited China and placed orders with various manufacturer, namely, M/s. Fuijian Lijia Electrical Appliance Co. Ltd., M/s. International Lighting City Zhongshan Co. Ltd. and M/s. Zhejiang Province Machinery and Equipment Complete Co. Ltd. He also confirmed that, while assembling the above components, only soldering of wires of tube and holder was done in their factory and thereafter, testing was undertaken.

(c) Examination of the documents seized during investigation revealed that various were exchanged between M/s. Samay and suppliers with an intention to evade anti -dumping duty and for that purpose M/s. Samay imported the holders fitted with wire and populated PCBs at Mumbai port and glass tubes with base at Kandla port at very short -intervals and declared them as components of compact fluorescent lamps. From the invoices issued by the suppliers, it was found that the entire compact fluorescent lamps in SKD condition were being supplied under the same number and date of the invoice. However, a suffix to the said invoice number was made with suffix "M" for imports through Mumbai port and suffix "K" for imports made through Kandla port. However, the numbers and dates of the invoices were one and the same in respect of both supplies. It was found that the appellant had imported 7,23,560 numbers of compact fluorescent lamps from Fuijian Lijia Electrical Appliance Co. Ltd., Fuijian, China and 5,40,600 pieces of compact fluorescent lamps from Zhejiang Province Machinery and Equipment Complete Co. Ltd., China and 66,85,125 pieces of compact fluorescent lamps from M/s. International Lighting City Zhongshan Co. Ltd., Guangdong Province, China by mis -declaring these items under import as components of compact fluorescent lamps. They had thus evaded anti -dumping duty amounting to Rs. 79,40,69,516.

(d) On completion of the investigation, a show -cause notice dated May 23, 2007 was issued seeking to classify the goods under Customs Tariff Heading 8539, 31, 10 as compact fluorescent lamps as against the classification done by the appellant at the time of importation under Customs Tariff Heading 8539, 90, 10 as parts of compact fluorescent lamps, by the applying rule 2(a) of the General Interpretative Rules of the Customs Tariff Act, 1975 and demanding anti -dumping duty along with interest thereon and also proposing confiscation of the goods under section 111(m). The notice also proposed imposition of equivalent amount of penalty under section 114A of the Customs Act, 1962 on the appellant importing firm and also on the director Shri Rameshbhai Patel.

(e) The said notice was adjudicated vide order dated June 13, 2008. The goods seized during the investigation consisting of 1,58,257 pieces of compact fluorescent lamps in SKD condition was confiscated with an option to redeem the same on payment of fine of Rs. 25 lakhs. Further the entire quantity of 75,56,708 pieces of compact fluorescent lamps in SKD condition imported were also confiscated with an option to redeem the same on payment of fine of Rs. 9 crore. Anti -dumping duty of Rs. 76,97,68,897 was confirmed along with interest thereon and equivalent amount of penalty was also imposed on M/s. Samay under section 114A and a penalty of Rs. 1 crore was imposed on Shri Ramesh Patel, director under section 112(a) ibid.

(2) M/s. Wipro Limited: It was found that during the period May, 2004 to October, 2005, M/s. Wipro Limited had imposed as many as 20 consignments of compact fluorescent lamps in SKD form declaring them as parts of compact fluorescent lamps with an intent to evade anti -dumping duty thereon. One such consignment was intercepted which was covered by bill of entry No. 613150, dated October 13, 2005 and the consignment was found to contain 36,050 pieces of sealed glass tubes, 35,000 pieces each of plastic lamp base and PCBs of 15 watts. The three items when assembled together formed 35,000 units of compact fluorescent lamps by merely soldering of wires and, therefore, the Department was of the view that by applying rule 2(a) of the General Interpretative Rules, the goods merited classification as compact fluorescent lamps attracting anti -dumping duty. However, pending settlement of the dispute the goods were allowed to be cleared provisionally on execution of bond and bank guarantee.

(a) The investigation revealed that the appellant, M/s. Wipro Ltd. had placed common purchase orders for import of three items, namely, (i) sealed glass tubes; (ii) ballasts (i.e., PCBs) and (iii) plastic housing of matching quantity. However, separate LCs were opened for each category of goods covered by the common purchase order. The goods were imported under separate commercial invoices under different bills of lading on different dates but in sequence. The invoices were consecutively numbered in a set of three and each set was issued on the same date. The goods sold under each set were meant for compact fluorescent lamps of the same type and wattage. Thus all the consignments of identical quantities were imported in the same manner. It, therefore, appeared that kits of compact fluorescent lamps of 11 watts, 15 watts and 20 watts were imported in semi -knocked down condition by the mis -declaring the same as parts of compact fluorescent lamps.

(b) Accordingly, a show -cause notice was issued for recovery of anti -dumping duty and in adjudication the adjudicating authority held that all the goods imported under 20 bills of entry in SKD condition are classifiable under Customs Tariff Heading 8539 31 10 attracting anti -dumping duty. The adjudicating authority also imposed penalty of equivalent amount on the importer, M/s. Wipro Limited under section 114A. The goods covered by all the bills of entry were confiscated with an option to redeem the same on payment of fine of Rs. 41 lakhs. A penalty of Rs. 2 lakhs was imposed on Shri Dilip Basole, vice president (commercial) of the appellant -firm under section 112(a) of the Customs Act, 1962.

(3) M/s. Sunora Electronics: During September, 2005 to December, 2006, M/s. Sunora Electronics imported compact fluorescent lamps in SKD condition partly by itself in and partly through M/s. Shell and Pearl Ceramics Ltd., Ahmedabad.

(a) It was found that vide six bills of entry, namely, 307935, dated September 6, 2005; 311179, dated January 24, 2006; 314762, dated July 14, 2006; 515896, dated September 12, 2006; 788914, dated May 29, 2006 and 981733, dated December 1, 2006, M/s. Sunora Electronics Industries at Morbi had imported directly from M/s. Lightex, Hong Kong, PCBs with socket or bulbs. Under another six bills of entry, M/s. Ceramics Ltd. Ahmedabad, imported matching quantities of tubes or bulbs from M/s. Intexport, Hong Kong vide bills of entry Nos. 971371, dated September 19, 2005; 676299, dated January 20, 2006; 791458, dated May 1, 2006; 837664, dated July 15, 2006; 871406, dated August 19, 2006 and 110107, dated December 11, 2006 through Nhava Sheva Port.

(b) As per the statements recorded from Shri Jignesh Kanjibhai Patel, partner of M/s. Sunora Electronics, they had imported PCB and lamp holder with metal cap from M/s. Lightex, China having their office in Hong Kong; that to make a complete compact fluorescent lamps, glass tubes with plastic base and lamp holders with metal caps were required. They imported PCB and lamp -holder with caps and the glass tubes were purchased from M/s. Shell and Pearl Ceramics Ltd., Ahmedabad.

(c) In his statement dated May 22, 2008, Shri Kamlesh Jain, manager accounts of M/s. Shell and Pearl Ceramics Ltd. admitted that they are a trading firm engaged in the business of import and trading of tiles and machinery parts. They imported components of, namely, glass tubes and sold them exclusively to M/s. Sunora Electronics and this was done at the instance of Shri Bhanjibhai Nagjibhai of M/s. Sunora Electronics. They had imported these glass tubes from M/s. Intexport, Hong Kong and their director, Shri Prafulla Gattani had negotiated with M/s. Sunora Electronics while he was visiting China.

(d) Shri Prafulla Gattani, in his statement dated May 29, 2008 admitted that he had visited China in the year, 2005. Shri Bhanjibhai of M/s. Sunora Electronics had also accompanied him. On the request of Shri Bhanjibhai, they had placed order for glass tubes with M/s. Intexport, Hong Kong and the firm was the authorised agent for Chinese manufacturers.

(e) Shri Bhanjibhai Nagjibhai, in his, statement dated August 27, 2008 admitted that, M/s. Sunora Electronics and M/s. Shell and Pearl Ceramics Ltd. had agreed to do business jointly by importing two components directly, one by M/s. Sunora Electronics and the other by M/s. Shell and Pearl Ceramics Ltd. After imports, by simple assembling all the components, compact fluorescent lamps could be manufactured.

(f) After completion of the investigation, a show -cause notice dated September 16, 2010 was issued to M/s. Sunora Electronics and M/s. Shell and Pearl seeking to classify 7,92,974 pieces of compact fluorescent lamps imported by M/s. Sunora Electronic and M/s. Shell and Pearl Ceramics Ltd. under Customs Tariff Heading 8539 31 10 in terms of rule 2(a) of the General Interpretative Rules and proposing to confiscate the same under section 111(d) and (m) of the Customs Act and seeking to recover anti -dumping duty of Rs. 9,16/50,373 from M/s. Sunora Electronic along with interest thereon. The notice also proposed to impose penalty on both M/s. Sunora Electronic and M/s. Shell and Pearl Ceramics Ltd. and also on Shri Jigneshbhai Patel, partner of M/s. Sunora Electronic and Shri Prafulla Gattani, director of M/s. Shell and Pearl Ceramic Ltd.

(g) In the adjudication order, the proposals in the show -cause notices were confirmed and anti -dumping duty of Rs. 9,16,50,373 together with interest was confirmed on M/s. Sunora Electronics and equivalent amount of penalty was also imposed under section 114A of the Customs Act. A penalty of Rs. 2 1/2 crore was imposed on Shri Jigneshbhai Patel, partner of M/s. Sunora Electronics and a penalty of Rs. 1 1/2 crore was imposed on M/s. Shell and Pearl Ceramics Ltd. under section 112(a) of the Customs Act apart from a penalty of Rs. 2 1/2 crores on Shri Prafulla Gattani, director of M/s. Shell and Pearl Ceramics Ltd.

(4) M/s. Amur Energy Systems: Investigation conducted revealed that during the period November, 2006 to September, 2007, the appellant, M/s. Amar Energy Systems, had imported several consignments of compact fluorescent lamps in SKD/CKD condition from Hong Kong and China through Nhava Sheva port vide bills of entry Nos. 954698, dated November 7, 2006; 664778, dated February 21, 2007; 697579, dated March 22, 2007; 843715, dated July 21, 2007; 865868, dated August 8, 2007 and 908232, dated September 11, 2007. Vide the aforesaid bills of entry, the appellant imported 13,000 pieces of compact fluorescent lamps parts, namely, glass tubes, PCB + cap, 72,000 pieces of glass tube with holder and micro assembly each and 72,100 pieces of tube with holder and 3,27,000 pieces of micro assembly for fluorescent light and 1,44,900 pieces of lass with holder. Investigation revealed that, Shri Nitinbhai Patel, power of attorney holder and husband of the proprietress of M/s. Amar Energy Systems, had visited China to arrange for import of compact fluorescent lamps in SKD condition in different consignments after negotiating with the Chinese suppliers. The modus operandi adopted was to import glass tubes in one consignment and PCB with cap in another consignment in matching quantity. When these parts and components are put together by merely soldering of wires, the complete compact fluorescent lamps could be manufactured and in terms of rule 2(a) of the General Interpretative Rules, the goods under importation merited classification as compact fluorescent lamps under Customs Tariff Heading 8539, 31, 10.

(a) Accordingly, after issue of the show -cause notice and hearing the appellant, anti -dumping duty of Rs. 3,53,33,940 together with interest was confirmed on the appellant and equivalent amount of penalty imposed under section 114A of the Customs Act. Further, a penalty of Rs. 5,00,000 was imposed on Shri Nitinbhai Patel under section 112(a) and 114AA of the said Customs Act.

(5) Aggrieved of these decisions, the appellants are before us.

The learned counsel for Samay Electronics made the following submissions which are summarised as follows: The appellants imported glass tubes with base from the Chinese exporter through Kandla port and holder with wire and populated PCBs from the same Chinese exporter through Mumbai/Nhava Sheva ports since November, 2004 onwards and the goods were declared as parts and components of compact fluorescent lamps and classified under Customs Tariff Heading 8539, 90, 10 and cleared the same on payment of appropriate customs duty. These parts and components were brought to the appellant's factory at Morbi for manufacture of compact fluorescent lamps and Cenvat credit of the CVD paid on such parts and components were also availed of on the compact fluorescent lamps so manufactured. The appellant discharged excise duty liability in terms of section 4A of the Central Excise Act, 1944. The appellant, for manufacture of compact fluorescent lamps, had made an investment of Rs. 35 lakhs on capital goods and had employed about 300 workers. The Director General of anti -dumping issued a notification dated August 16, 2001 initiating anti -dumping investigations concerning imports of compact fluorescent lamps originating from China and the product covered was compact fluorescent lamp (CFL) with one or more glass tubes and which have all lighting elements, all electronic components and cap integrated in the lamp foot. It also covered compact fluorescent lamps without choke or ballast.

On November 2, 2001 the preliminary findings were notified vide Notification No. 34/1/2001 -DGAD, dated November 2, 2001 and the product covered was as described above. Vide Notification No. , dated December 21, 2001, anti -dumping duty was imposed on compact fluorescent lamps originating from China. The DGAD issued final findings vide notification dated November 14, 2002 and the product covered by the investigation was the same as that covered by the preliminary investigation and vide Notification No. , dated December 10, 2002, the Central Government imposed definitive, anti -dumping duty on compact fluorescent lamps originating from China. Notification No. expired on December 20, 2006. Thereafter, the DGAD initiated fresh anti -dumping investigation vide Notification No. , dated August 30, 2007 concerning imports of compact fluorescent lamps with or without ballasts/control gear/choke, whether or not assembled either in CKD or SKD condition, originating from China. Thereafter, the preliminary findings were notified vide Notification No. 14/1/2001 -DGAD, dated March 12, 2008 and vide Notification No. , dated November 21, 2008, provisional anti -dumping duty was imposed on compact fluorescent lamps, whether or not assembled, either in CKD or SKD condition. Vide notification dated December 27, 2009 the DGAD. issued final findings and the product covered included:

(a) Compact fluorescent lamps with integral/integrated built in ballast/control gears/choke also known as self -ballasted which are complete, ready to use units;

(b) Non -integrated compact fluorescent lamps which do not have built in ballast/control gears/choke;

(c) Unassembled compact fluorescent lamps without ballast/choke/control gear.

Vide Notification No. , dated May 26, 2009, definitive anti -dumping duty was imposed on compact fluorescent lamps, with or without ballast/control gear/choke, whether or not assembled, either in CKD or SKD condition. It is contended that Notification No. , dated December 10, 2002 expired on December 20, 2006 on its own without any express repeal and this notification is a temporary statute. Section 159A of the Customs Act, 1962, does not apply to temporary statutes and, therefore, this notification does not exist in the eye of law after its expiry, except for things past and closed. Even notices issued prior to expiry would cease to exist after the expiry. Hence, the present proceedings, being bad in law, are illegal.

Further, in terms of section 9A(5) of the Customs Tariff Act, it is clearly provided that anti -dumping duty imposed under section 9A shall cease to have effect on the expiry of five years from the date of such imposition and, therefore, Notification No. , ceased to have effect after the expiry of five years from December 21, 2001. Therefore, the demand for anti -dumping duty is not sustainable in law. It is also pointed out that the adjudicating authority has dropped the anti -dumping duty demand for imports post December 20, 2006.

The common law rule is that if an Act expired or was repealed it was regarded, in the absence of provision to the contrary, nothing can survive except as to matters and transactions past and closed. Reliance is placed on Maxwell's. "The Interpretation of Statutes - -Twelfth edition" wherein it is stated that:

"The common law rule was that if an Act expired or was repealed it was regarded, in the absence of the provision to the contrary, as having never existed, except to matters and transactions past and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution began while the Act was still in force."

Reliance is also placed on Kolhapur Canesugar Works Ltd. v. Union of India : [2000] 119 ELT 257 (SC) case, wherein the apex court considered the issue of omission of a statute in terms of section 6 of the General Clauses Act, 1897 and it was held that:

"In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision."

It is argued that since section of 6 of the General clauses Act is not applicable to temporary statute, for the same 159A of the Customs Act is also not applicable to temporary statutes. Reliance is also placed on the decision of the apex court in the case of S. Krishnan v. State of Madras : [1951] AIR 1951 SC 301 held that - -"The general rule in regard to temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires".

Support is sought to be derived from the decisions of the hon'ble Bombay High Court in Writ Petition No. 410 of 2010 in the case of Sparkling Waters P. Ltd. v. Union of India and of the apex court in the case of District Mining Officer v. Tata Iron and Steel Co. : [2001] 7 SCC 358 wherein also the above principles have been followed. So is the case with the decision of the hon'ble apex court in India Cement v. State of Tamil Nadu : [1991] 188 ITR 690 (SC) : [1990] 1 SCC 12. The contention is that in a case where notice is issued prior to the expiry of the notification, and the order is passed after expiry, it is not a matter "past and closed". This is for the reason that the notice is a mere proposal and not a right in favour of the Revenue. It is also pointed out that in the past when auxiliary duties of customs were imposed on an annual basis under the Finance Acts, there was a specific provision incorporated to make section 6 of the General Clauses Act applicable as if the section imposing auxiliary duty had been repealed by a Central Act. In the case of anti -dumping duty, in the notifications levying anti -dumping duty, there is no such saving clause and, therefore, in the absence of a specific provision, once the anti -dumping levy expires, all actions initiated if not concluded before expiry, would terminate. In the present case, since the show -cause notice itself has been issued after the expiry of the notification, its legality cannot be upheld at all and, therefore, the present proceedings confirming anti -dumping duty after the expiry of the notifications is null and void and unsustainable.

The next argument put forth is that as far as the levy of basic customs duty is concerned, there is no change in this classification sought by the Revenue and the goods imported have been treated as parts. Even for the levy of CVD, the goods have been treated as parts. The present notice seeks to alter the classification only in respect of anti -dumping duty alone, wherein the classification is sought to be changed as complete compact fluorescent lamps and this is fatal to the Revenue's case. Even if it is assumed that the imported goods are compact fluorescent lamps in SKD/CKD condition, the law was amended only in 2008 wherein compact fluorescent lamps in CKD/SKD condition were also made liable to antidumping duty. Therefore, for the period prior to March, 2008, there cannot be any anti -dumping duty on compact fluorescent lamps in CKD/SKD condition. Section 9A(1A) of the Customs Tariff Act was brought under the statute with effect from April 8, 2011 which provided for levy of antidumping duty in case of circumvention either by altering the description or the name or composition of the article with an intent to render ineffective the levy of anti -dumping duty. The said provisions were made effective from January 19, 2012. Therefore, prior to April 8, 2011/January 19, 2012, there was no provision, if the importers resorted to circumvention by bringing articles in unassembled or disassembled conditions. Even as per the amended provisions, there are a number of pre -requisites required to be fulfilled which includes investigation to decide the circumvention and the recommendation of DGAD as regards circumvention, etc. Therefore, prior to 2008 complete and ready to use compact fluorescent lamps alone was liable to anti -dumping duty and parts and components imported were not liable to anti -dumping duty. This is also supported by the clarification issued by the DGAD vide letter dated May 1, 2006 in pursuance to a letter dated April 4, 2006 by M/s. Khaitan Electricals Ltd. In the said letter, it was clarified that:

"(a) Anti -dumping duties were recommended/imposed on the following two types of compact fluorescent lamps:

(i) Complete, ready to use compact fluorescent lamps wherein choke is integrated within the lamp.

(ii) Complete, ready to use compact fluorescent lamps wherein choke is external.

(b) Anti -dumping duties were not recommended on parts/components of compact fluorescent lamps.

(c) 'Compact fluorescent lamps with choke' is complete ready to use compact fluorescent lamps wherein choke is an internal part.

(d) Compact fluorescent lamps without choke as defined in the final findings is complete ready to use compact fluorescent lamps wherein choke would be external part."

In view of the clarification issued by the DGAD, it is clear that compact fluorescent lamps in SKD/CKD condition were not liable to antidumping duty prior to 2008 as they were not covered by the investigation conducted by the DGAD. The Revenue has also not adduced any evidence to show that the parts and components imported by the appellants can be bought and sold as complete ready -to -use compact fluorescent lamps. Reliance is placed on the following decisions, namely, Anchor Daewoo Inds. Ltd. v. Commissioner of Customs, [2007] 214 ELT 230 (Trib. -Ahd), Wipro Ltd. v. Commissioner of Customs : [2007] 217 ELT 558 (Trib. -Chennai) and Philips India Ltd. v. Commissioner of Customs : [2004] 166 ELT 49 (Trib. -Mum) wherein it was held that parts of compact fluorescent lamps are not covered by the anti -dumping duty Notification No. , dated December 10, 2002.

As regards the reliance placed by the Revenue in the case of Commissioner of Customs v. Plaza Lamps and Tubes Ltd. : [2005] 185 ELT 223 (Trib. -Delhi), wherein the Tribunal had held that glass tube with plastic lamp base was liable to anti -dumping duty, the said decision was reversed by the hon'ble Delhi Court in Plaza Lamps and Tubes Ltd. v. Commissioner of Customs, [2007] 209 ELT 182 (Delhi). Similarly, in the case of Delta Electronics v. Commissioner of Customs and Central Excise : [2012] 283 ELT 68 (Trib. -Delhi), it was held that import of parts of compact fluorescent lamps like electric bulbs populated PCBs, plastic parts, metal caps, etc., will not mean that there is import of compact fluorescent lamps in CKD/SKD condition. In Nov Durga Associates v. Union of India : [2012] 16 GSTR 175 (Delhi); [2013] 287 ELT 19 (Delta), the hon'ble Delhi High Court held that rule 2(a) of the General Interpretative Rules changes the classification, but it does not alter the nature and description of the imported goods. In the said case, the assessee imported various parts of dry battery cells and the Department sought to levy anti -dumping duty on such parts by applying rule 2(a) holding that there has been import of dry battery cells in CKD/SKD condition. The hon'ble High Court held that since notification did not cover parts of dry battery cells, the demand for anti -dumping duty would not sustain.

The learned counsel further argues that rule 12(a) of the General Interpretative Rules is inapplicable for a number of reasons. The said rule would apply only when the goods are presented in one lot at the time of import. If there are imports separately at different points of time at different ports, they cannot be treated as presented together so as to invoke rule 2(a) of the General Interpretative Rules. Reliance is placed on the decision in Tata Motors Ltd. v. CCE, [2008] 222 ELT 289 (Trib. -Kolkata) affirmed by the hon'ble apex court. It is also argued that in Mewar Barton Nirman Udyog : [2008] 231 ELT 27 (SC), the hon'ble apex court has held that rules of interpretation applicable for classification cannot be applied while interpreting a notification. It is further argued that rule 2(a) does not apply for the purposes of section 9A. The same applies only in respect of the provisions of Customs Act, namely, for levy under section 12 of the Act read with section 2 of the Customs Tariff Act, 1975. It does not apply to levy of anti -dumping duty. The above position is clear from the decision of the hon'ble apex court in the case of Hyderabad Industries Ltd. v. Union of India : [2000] 118 STC 293 (SC) : [1999] 108 ELT 321 (SC). Even if it is assumed that rule 2(a) is applicable for the proceedings under section 9A, since the notification imposing anti -dumping duty does not cover compact fluorescent lamps in SKD/CKD condition, the same cannot be applied. In Permalite Electricals P. Ltd., In re : [2004] 168 ELT 164 (AAR), the authority for advance ruling had held that rule 2(a) cannot be applied for levy of antidumping on compact fluorescent lamps imported in parts/CKD/SKD condition. It is also contended that from the various e -mails exchanged between the appellant and the foreign supplier, the intention was to import parts only and not for import of complete compact fluorescent lamps.

It is further submitted that the reliance placed by the Revenue on Roma International v. Commissioner of Customs : [2004] 174 ELT 83 (Trib. -Mum) is distinguishable on facts, inasmuch as in the said case, the appellant therein had filed one single bill of entry for import of goods described as un -branded electronic 9W PL tubes of 50,000 and un -branded electronic 11W PL tubes 50,000 pieces. In the said case, the Tribunal and the Commissioner held that compact fluorescent lamps with/without ballast was considered during the investigation proceedings and was covered by the anti -dumping duty notification and applying rule 2(a) of the General Rules of Interpretation held that the item under import was compact fluorescent lamps leviable to anti -dumping duty. In the present case, the imported items are completely different and what has been imported are parts and components. Similarly, reliance placed by the Revenue in Collector of Customs v. Maestro Motors Ltd. : [2005] 4 RC 1; [2004] 174 ELT 289 (SC), Commissioner of Customs v. Phoenix International Ltd. : [2007] 9 RC 601; [2007] 216 ELT 503 (SC) and Sharp Business Machines : [1990] 49 ELT 640 (SC) are also distinguishable.

The learned counsel further argues that the appellant received the show -cause notice only on May 24, 2007 and, therefore, the entire period of demand is clearly beyond the normal period of six months. It is also submitted that as per the information obtained through RTI, Commissioner of Customs, Mumbai, was aware that parts of compact fluorescent lamps were imported through Mumbai and Kandla port and the manufacturing process carried out in the appellants premises at Morbi and he had sought information in this regard from the Commissioner of Central Excise and Customs, Rajkot. Therefore, the Department was also under the belief that anti -dumping duty is not leviable on parts of compact fluorescent lamps.

The learned counsel for M/s. Wipro Limited, while reiterating the arguments made in the case of M/s. Samay Electronics, submits that anti -circumvention provisions which came into force on April 8, 2011 are only prospective and cannot be applied to past imports. Further, compact fluorescent lamps in SKD condition was covered by fresh investigation conducted in 2008 and, therefore, it is clear that prior to this investigation, the levy of anti -dumping duty applied only on complete, compact fluorescent lamps. It is further submitted that tax planning cannot be termed as illegal or illegitimate or impermissible. It is also contended that goods cannot be confiscated under section 111(m) as section 9A(8) of the Customs Tariff Act does not borrow the provisions relating to confiscation. Imposition of penalty under section 114A is also incorrect as the said provision envisages recovery of duty under section 28. Section 28 cannot apply in respect of a bill of entry which has been finally assessed.

The learned counsel for M/s. Sunora Electronics Industries submits that during the period September, 2005 to March, 2008, the appellant imported 16 consignments of lamp holders with/without metal caps and the appellant classified these as parts of fluorescent tube lamps as falling under Customs Tariff Heading 8539 90 10. The glass tubes which are required for manufacture of compact fluorescent lamps were purchased locally from M/s. Shell and Pearl Ceramics Ltd., Ahmedabad. The orders for supply of glass tubes were placed by Shell and Pearl Ceramics Ltd. and the remittance for the same were also made by M/s. Shell and Pearl Ceramics Ltd. Thus the goods were imported by M/s. Shell and Pearl Ceramics Ltd. and after importation, they sold the same to the appellant, M/s. Sunora Electronics Industries. M/s. Sunora Electronics Industries and M/s. Shell and Pearl Ceramics Ltd. are separate and independent legal entities and are not related to each other in any way. Therefore, clubbing the imports of both these entities invoking the provisions of rule 2(a) of the General Interpretative Rules is clearly unsustainable in law. Accordingly, it is pleaded that the proceedings initiated against the appellant and its partner be dropped.

The learned counsel for M/s. Amar Energy Systems, while reiterating the submissions made by the counsel for M/s. Samay Electronics Pvt. Ltd., submits that the appellant had imported parts of compact fluorescent lamps in various consignments and these imports would not cover complete compact fluorescent lamps. In any case, the anti -dumping duty did not cover compact fluorescent lamps in CKD/SKD condition and, therefore the demands are clearly unsustainable in law. Accordingly, it is pleaded that the demands be set aside.

(3.)THE learned special consultant appearing for the Revenue made the following submissions:
The appellants herein had imported compact fluorescent lamps in the guise of components of compact fluorescent lamps only to evade antidumping duty by resorting to subterfuge. They split -up the consignments and imported them on different dates and sometimes through different ports. During the investigation, each of the appellants had admitted that the imported components, namely, glass tubes with base, holders with wire and PCBs (put together by soldering wires), constituted a complete compact fluorescent lamps in SKD condition. In the light of these admitted facts the contention that the goods have to be assessed as presented, i.e., parts and components of compact fluorescent lamps cannot be accepted. It is open to the Department to club the components or parts of any complete article imported under two or more bills of entry by a person or by more than one person, having common economical interest at or about the same time, so as to make such an article in CKD or SKD condition by virtue of rule 2(a) of General Interpretative Rules. Various courts, including the apex court have held that the goods imported in different consignments on different dates and even through different ports can be clubbed together, if it is found that it has been so done only as a subterfuge to evade payment of duty. He relies on the following decisions:

(a) Sharp Business Machines P. Ltd. : [1990] 49 ELT 640 (SC): In this case, the importers imported three, consignments of components, and consumables in SKD/CKD condition for plain paper copiers under three bills of entry, all dated January 21, 1987. The importer also imported one consignment of such goods from Singapore vide bill of entry dated March 11, 1987. The proceedings initiated by the Department alleged that the company was guilty of mis -declaration of the goods. The adjudicating authority held that the goods imported were fully finished copiers in SKD/CKD form. In appeal, the Tribunal dismissed the appeals by recording a finding that one has to look into the respective licences and not to the fact that if all the consignments covered by all the bills of entry are assembled together, there will be a full and complete machinery. The said decision was challenged before the hon'ble apex court, and the hon'ble apex court held that the device adopted was a complete fraud on the import policy and the appellant was doing indirectly what he was not permitted to do directly, and the appeals were dismissed accordingly.

(b) In Phoenix International Ltd. : [2007] 9 RC 601, the appellant therein, imported synthetic shoe uppers numbering 5,215 pairs on February 16, 1996. On the same day, M/s. Phoenix Industries Ltd. imported outer soles, insoles and sock liners numbering 5,151 pairs in the same container. Both companies declared the respective items, imported as components and parts. M/s. Phoenix Industries Ltd. was 100 per cent fully owned subsidiary of M/s. Phoenix International Ltd. The Department sought to club the items imported by both importers and sought to classify the same as complete synthetic shoes in SKD/CKD form invoking rule 2(a) of the General Interpretative Rules. The matter, after adjudication and appellate stages, reached the Supreme Court and the hon'ble Supreme Court observed that the entire device was a colourable one undertaken to show that what was imported were parts and not the footwear in SKD condition and it was held that M/s. Phoenix International Ltd. was the real importer of all the four items and hence the Department was right in clubbing them.

(c) Similarly, in Maestro Motors Ltd. : [2005] 4 RC 1, the appellant entered into a collaboration agreement with M/s. Rover U.K., for manufacture of Montego cars. They imported 217 sets of cars consisting of body assembly complete with accessories, gear, engine assembly, etc., and also components, such as, wind screen assembly, wheel rims, glass assembly, radiator assembly, front and back suspension, fuel tank assembly, and so on. In effect, they were importing the entire car in CKD condition for which they filed 11 bills of entry with Bombay customs and another 14 bills of entry with Madras customs and claimed the goods to be components arid also sought to avail of benefit of Notification No. 73/1993. The adjudicating authority held that, between the imports in Bombay and Madras, entire cars had been imported in CKD condition and thus the components were classified as cars. At the appellate stage, the Tribunal allowed the appeal of M/s. Maeostro Motors Ltd. The matter reach the hon'ble Supreme Court and the hon'ble apex court held that such components are nothing but cars in CKD condition by applying the interpretative rule 2(a) of the General Rules of Interpretation of the Customs Tariff.

(d) In Videomax Electronics : [2011] 264 ELT 466 (Trib. -Mum), two proprietary firms, namely, M/s. Electronic Instrumentation owned by Shri Vinod Kumar Agarwal and M/s. Videomax Electronics owned by the wife of Shri Vinod Kumar Agarwal, imported parts and components of rechargeable lights and radio cassette recorders during the period from April, 1997 to February, 1998. The goods were assessed and allowed to be cleared. Later on, investigation was undertaken which revealed that when the parts and components imported by the two firms are clubbed together, they constituted "radio, cassette recorder" and "rechargeable light" in CKD/SKD condition in terms of rule 2(a) of the General Rules of Interpretation of the Customs Tariff. Accordingly, proceedings were initiated by issue of a show -cause notice and the adjudicating authority dropped the show -cause notice on the ground that each bill of entry is to be assessed in the condition in which the goods are presented for assessment. The Revenue took up the matter in appeal before this Tribunal and this Tribunal observed that parts and components imported by the husband and wife were in matching quantity and when they were clubbed together, they constituted complete kits of radio cassette recorders and rechargeable lights in CKD/SKD condition in terms of rule 2(a) of the General Rules of Interpretation of the Customs Tariff. In deciding this matter, the Tribunal followed the judgment of the hon'ble apex Court in the case of Phoenix International Ltd. : [2007] 9 RC 601.

(e) In Hindustan Motors Ltd. : [2003] 156 ELT 155 (Trib. -Delhi), M/s. Hindustan Motors had imported complete diesel/petrol engines in unassembled condition during the period February, 1999 to July, 2000 and cleared the same under 104 bills of entry by declaring them as parts and components of such engines. The matter was taken up in appeal before this Tribunal and this Tribunal observed that M/s. Hindustan Motors had imported component sets of engines in unassembled condition which on assembly would have the essential character of the complete or finished article, by application of rule 2(a) of the General Interpretative Rules. Aggrieved by this decision, M/s. Hindustan Motors filed civil appeals before the hon'ble apex court and the hon'ble apex court dismissed the said appeals Hindustan Motors Ltd. v. Commissioner of Customs, [2005] 181 ELT A 130 (SC).

(f) In Roma International v. Commissioner of Customs : [2004] 174 ELT 83 (Trib. -Mum) this Tribunal had occasion to examine the levy of antidumping duty on compact fluorescent lamps in CKD/SKD condition. The Tribunal held that rule 2(a) of the General Interpretative Rules can be applied for classifying the product, and by such application, if the goods under import satisfy the description of unassembled or disassembled compact fluorescent lamps, they can be classified as compact fluorescent lamps and anti -dumping duty can be levied on such compact fluorescent lamps.

(g) In Ankit Asthana v. Commissioner of Customs, vide Final Order Nos. A/223 and 224/14/CSTB/C -I, dated December 16, 2013 this Tribunal examined levy of anti -dumping duty on plastic injection molding machine imported in CKD/SKD condition and held that, if rule 2(a) of the General Interpretative Rules is invoked, the goods under importation would satisfy the description of a complete machinery leviable to anti -dumping duty and accordingly, upheld the levy of anti -dumping duty.

(h) As regards the argument that since anti -dumping duty notification expired on December 20, 2006 without any saving clause, and, thereafter, proceedings cannot be initiated, sub -section (8) of section 9A was amended vide the Finance Act, 2009 which provided for application of the provisions of the Customs Act, 1962 and the rules and regulations made thereunder in respect of anti -dumping duty, as far as may be, as they apply in relation to the duties leviable under that Act and vide section 102 of the Finance Act, 2009 the said section was been given retrospective effect from November 1, 1995 and all actions taken during the period January 1, 1995 to August 19, 2009 were validated. In the present case, during the currency of Notification No. 138/2002 -Customs, dated December 20, 2002, the appellant incurred the liability to anti -dumping duty and the said liability would not get extinguished with the expiry of the notification. Accrued liabilities continue even after the expiry of the notification and, therefore, the argument that no action can be continued or taken after the expiry of the notification is incorrect and unacceptable.

(i) The learned special consultant submits that each of the appellant in the appeals herein, is engaged in the assembly of compact fluorescent lamps and requires all the three components. However, instead of importing all the three components together, they chose to import the same separately in different consignments, on different dates and sometimes through different parts. As far as M/s. Samay Electronics is concerned, they chose to import two components through Mumbai port and one component through Kandla port. M/s. Sunora Electronics Industries imported two components by itself and one component through M/s. Shell and Pearl Ceramics Ltd., although it could have imported all the three components by itself. M/s. Wipro Ltd. and M/s. Amar Energy Systems had, imported all the three components in different consignments, on different dates. The obvious intention behind such arrangement was to evade anti -dumping duty. Hence they resorted to subterfuge. The intention of the importers plays an important role in such matters as has been held by the hon'ble apex court in the case of Phoenix International Ltd. : [2007] 9 RC 601.

In view of the above, it is submitted that, anti -dumping duty has been correctly demanded and, therefore, the impugned orders confirming antidumping duty together with interest, confiscation of the goods along with imposition fines and penalties are required to be upheld and he, pleads accordingly.

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