COMMISSIONER OF CUSTOMS (EXPORT) NHAVA SHEVAversusM/S. MASCOT INTERNATIONAL

                       [2017] 6 S.C.R. 331



  COMMISSIONER OF CUSTOMS (EXPORT) NHAVA SHEVA                        A
                                v.
               M/S. MASCOT INTERNATIONAL
                  (CivilAppealNo.10483 of2013)
                          JULY03, 2017                                B

          [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Anti dumping duty - Flat roll product of stainless steel -
Respondent imported the subject goods and the width thereof was
more than 1250 mm but less than 1300 mm - Claim for exemption         C
from payment of anti dumping duty under Notification No. 14120 I 0-
 Cus., dated 20.02.2010 as amended by Notification 8612011-Cus,
dated 06.09.2011 - Held: Jn terms of Notification dated 06.09.2011
 if width is between 1251 mm to 1280 mm, the anti dumping duty is
payable - However, where goods sought to be imported were not
 cleared and were re-exported, the question of anti dumping duty      D
 would not arise - Notification No. 1412010-Cus., dated 20.02.2010
 and Notification 86/2011-Cus, dated 06.09.2011.
      Disposing of the appeals, the Court
      HELD: 1. In view of Notification dated 06.09.2011,
tolerance level of + 30 mm is to be taken into account. In this       E
manner, if the width is between 1251 mm to 1280 mm, the anti
dumping duty would be payable as per the Notification. The
imports were of the period after the issuance of the Notification
dated 06.09.2011 and the width of their product was bet~en
.1251 mm to 1280 mm. These imports were, therefore, clearly           F
liable for anti dumping duty. The CESTAT while deciding the
appeal in favour of the respondents did not consider the impact
of review Notification dated 06.09.2011 in its proper prospects.
[Para 6] [334-C-D)             '
      2. In case of those goods which are sought to be imported       G
but are not cleared and are re-exported, the question of payment
of any anti dumping duty would not arise. The CESTAT took into
consideration this ground while setting aside the demand of anti
dumping duty and rightly allowed the appeal of the respondents.
[Para 7] (334-F]
                                                                      H
                               331
332            SUPREME COURT REPORTS                       [2017] 6 S.C.R.



A          CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 0483
      of2013.
            From the Judgment and Order dated 03.04.2013 of the Customs,
      Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai,
      in Appeal No. C/85087/13.
B                                    WITH
            C. A. Nos.2407-2408 of2014.
            Maninder Singh, ASG, Ms. Nisha Bagchi, P. K. Mullick, B. Krishna
      Prasad, Advs. for the Appellants.
C            Kuna! Verma, Yogandhera P. Jha, Ms. Priyanka Ashok, Ashish
      Batra, Nikhil Jain, Advs. for the Respondent.
            The Judgment of the Court was delivered by
      A. K. SIKRI, J.
D     CIVIL APPEAL NOiS). 10483/2013
            I. The following substantial question of law has arisen in these
      appeals for determination by this Court:
            "Whether Anti Dumping Duty is applicable on flat roll product of
            stainless steel having width between 1250 mm to 1280 mm under
 E          Notification No. 14/2010-Cus., dated20.02.2010 as amended by
            Notification 86/2011-Cus, dated 06.09.2011 ?"
             2. The factual matrix WHICH is required to be noted for
      determination of the aforesaid question is in narrow campus and,
      therefore, the facts which have no bearing on the aforesaid issue are
 F    avoided. The material facts which need to be noted are that vide
      Notification No. 14/2010-Cus.,dated20.02.2010 anti dumping duty was
      imposed by the Central Government on certain goods imported from
      some specified countries which included cold-rolled flat products of
      stainless steel of width of 600 mm up to 1250 mm of all series with a
 G    thickness ofupto 4 mm and the subject matter thereof, as per the said
      Notification, was as under:
            "Subject: Anti-dumping (Mid-term Review) investigation limited
            to the product scope of definitive Anti-dumping Duty imposed on
            Cold-Rolled Flat Products of Stainless Steel of the width of600mm
            upto 1250 mm ofall series fortherworked then Cold Rolled (cold
 H
COMMISSIONER OF CUSTOMS (EXPORT) NHAVA SHEVA v.                               333
   MIS. MASCOT INTERNATIONAL [A. K. SIKRI, J.]

      reduced) with a thickness of up to 4 mm, originating in or exported     A
      from China PR, Japan, Korea, European Union, South Africa,
      Taiwan, Thailand and USA- Final Findings."
       3. This mid-term review was at the instance of the indigenious
industry and in the representation submitted by it, it was pointed out that
the deisgnated authority had restricted the width of the subject goods in     B
the original investigation to 1250 mm. While doing so, no tolerance was
prescribed. It is stated that no engineering product can be produced to
the exact dimenions without any tolerance. It was further pointed out
that in the absence of any tolerance in the recommendations and in the
customs notification, the products of width 1250 mm or lower are being
declared as having width of 1251 mm to 1300 mm and thereby anti               c
dumping duty is circumvented. After detailed exercise of review, it was
decided to specify the tolerance limits as well. Resultantly, Notification
dated 08.06.2011 was issued prescribing the tolerance limits in the
following manner:
       "In the said notification in para 1 after the Table the following      D
       shall be ipserted namely:
      (a) width tolerance of(+) 30mm shall apply to Mil edged cold
      rolled flat products of stainless steel of specified width of I OOOmm
      or more but not exceeding I 250mm.
                                                                              .E
      (b) width tolerance of(+) 4 mm shall apply to rim edged cold
      rolled flat products of stainless steel of specified width exceeding
      1OOOmm but not exceeding ! 250mm."
      4. It becomes clear from the aforesaid that those products where
the width is 1250 mm, tolerance level up to 1250 mm is to be applied
                                                                               F
meaning thereby the products' width between 1251 mm to 1300 mm
were also supposed to bear anti dumping duty.
       5. Insofar as the respondents herein are concerned, they had
imported the subject goods and the width thereof was more than 1250
mm but less than 1300 mm. Their submission was that they were not              G
supposed to pay any anti dumping duty having regard to the fact that'
vi de Notification dated 20.02.20 I 0 anti dumping duty is to be paid only
on those steel cold rolled products of the width between 600 mm to 1250
mm. Since their contention was not accepted by the Department, these
respondents preferred an appeal before the Customs, Excise & Service
                                                                               H
334             SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     Tax Appellate Tribunal (CESTAT). The CESTAT has allowed the appeal
      accepting the contention of these respondents that the Notification
      prescribes that stainless steel of specified width will not be exceeding
      1250 mm and, therefore, the same is not applicable in the case of the
      respondents. Challenging that decision these appeals are filed by the
      Revenue.
B
             6. From the narration of facts, particularly mid term review
      culminating in Notification dated 06.09.2011, it becomes clear that
      tolerance level of+ 30 mm is to be taken into account In this manner, if
      the width is between 1251 mm to 1280 mm, the anti dumping duty would
      be payable as per the Notification. The learned counsel for the
C     respondents could not dispute that the imports are of the period after the
      issuance of the Notification dated 06.09.2011 and the width of their product
      was between 1251 mm to 1280 mm. These imports were, therefore,
      clearly liable for anti dumping duty. The CESTAT while deciding the
      appeal in favour of the responents did not consider the impact ofreview
D     Notification dated 06.09.2011 in its proper prospects as indicated above.
      Accordingly, the appeal is allowed and the order of the CESTAT is set
      aside with no order as to cost.
      CNILAPPEAL NOS. 2407-2408/2014
             7. In these appeals, though the question of law is same and,
 E    therefore, the judgment of the CESTAT is unsustainable, however, the
      responents have pointed out that the goods sought to be imported were
      not cleared and were re-exported. Since the goods stand re-exported
      the question of payment of any anti dumping duty would not arise.
      Therefore, the CESTAT has taken into consideration this ground while
 F    setting aside the demand of anti dumping duty and rightly allowed the
      appeal of the respondents. This appeal is, accordingly, dismissed.


      Devika Gujral                                             Appeals disposed of.