M/S. JASWAL NECO LTD.versusCOMMISSIONER OF CUSTOMS, VISAKHAPATNAM

                     (2015] 8 S.C.R. 873


                 M/S. JASWAL NECO LTD.                            A
                              v.
   COMMISSIONER OF CUSTOMS, VISAKHAPATNAM
               (Civil Appeal No.7189 OF 2005)
                                                                  B
                      AUGUST 4, 2015.                  1!

           [A.K. SIKRI AND R.F. NARIMAN, JJ.]
         Customs Tariff (Identification, Assessment and
 Collection of Antidumping Duty on Dumped Articles and for        c
 Determination of Injury) Rules, 1995- r. 20(2)(a) - Import of
 Low Ash Metallurgical Coke - By manufacturer of pig iron
 using a blast furnace - Non-payment of Anti-dumping Duty
 levied u/s. 9A of Customs Tariff Act, 1975 in view of
·Exemption Notification - lmporter-assessee failed to fulf111     D
 its export obligation in terms of the exemption Notification -
 Relevant period June 1998 to August 1998 - Demand of
 Anti-dumping Duty - Authority concerned confirmed the
 demand and directed the assessee to pay the duty under
 the Notification dated 27.10.1998 - Appeal to Tribunal by        E
 the assessee - Tribunal increased the anti-dumping duty
 applying the higher rates specified by the final Notification
 No. 6912000 dated 19.5.2000 '- On appeal, held: The
 assessee is liable to pay anti-dumping duty- The exemption
 under the Notification dated 19.05.2000 to the imports of        F
 Metcoke by a manufacturer of pig iron using a blast furnace,
 is not applicable to the appellant-assessee - However, the
 assessee is liable to pay ant1~dumping Duty as specified
 under Notification No. 81198 dated 27.10.1998 and not as         G
 specified under Notification dated 19. 05. 2000 (as increased
 by the Tribunal)- Tribunal could not have enhanced the rate
 of anti-dumping duty in the assessee 'sown appeal- Customs
 Tariff Act, 1975 - s. 9A - Notification No. 81198 dated
 27. 10. 1998 - Notification No. 6912000 dated 19. 05. 2000.      H
                             873
874          SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A             Interest- On customs duty - On the ground that the
       duty was paid after issuance of show-cause notice - Import
       of Low Ash Metallurgical coke - By manufacturer of pig iron
      - Non-payment of 'Basic Customs Duty' levied u/s. 12 of the
       Customs Act, 'Special Customs duty' levied uls. 68 of
B     Finance Act, 1996 and 'Special Additional duty' levied u/s.
      3A of Customs Tariff Act, 1975-Forthe period June 1998 to
      August 1998- The above duties were exempt under different
      Notifications - The importer-assessee, at the time of import
      had furnished a bond to pay the duties on the imported goods
C     in the event offailure to fulfill its export obligation in terms of
      the notifications - Failure of the assessee to fulfill its export
      obligation - Demand of duty-Assessee paid the entire duty
      after the demand- The authority concerned imposed interest
      on the duty paid @ 24% on the ground that duty was paid
0
      after issuance of show-cause notice - The Tribunal reduced
      the interest to 15% - On appeal, held: As per Notification No.
      30of1997 interest@ 24% is payable only when the importer
      executes the bond in which such interest is stated to be
E     payable - The bond executed in the present case says
      nothing about the interest payable in case the conditions
      under the Notification No.30197 are not met - Customs Act
      also contains no provision for levy of interest at the relevant
      time - s. 18(3) of the Customs Act providing for levy of such
F     interest was only added w.e.f. 13-7-2006- Levy of interest
      can only be by substantive provision and such levy can only
      be prospective - The assessee was not liable to pay interest
      - Customs Act, 1962- ss. 12 and 18(3) - Finance Act, 1996
      - s. 68- Customs Tariff Act, 1975- s. 3A - Notification No. 301
G     97CUS dated 1.4.1997.

         Customs Tariff Act, 1975 - ss. 3(2) and 3A(2) -
  'Additional duty' and 'Special Additional Duty' - Calculation
  of - Whether would include 'Anti-dumping Duty' - Held: In
H view of s.23 of Finance Act, 1963 which uses the same
      MIS. JASWAL NECO LTD. v. COMMISSIONER OF                875
              CUSTOMS, VISAKHAPATNAM

  expressions as used In s. 3(2) ands. 3A(2), the expression A
  "in addition" in ss. 3(2) and 3A(2) refers to only a surcharge
  or; an additional duty of customs - Therefore, "Anti-dumping
  duty" would not be included in ''Additional duty" and "Special
· Additional Duty" - Customs Tariff (Identification, Assessment
  and Collection of Anti-dumping Duty on Dumped Articles and B
  for Determination of Injury) Rules, 1995- Finance Act, 1963
  - ss. 23 and 24(3).                                        _'«

         Customs Act, 1962- Import of Low Ash Metallurgica~
 Coke - By manufacturer of pig iron - Non-payment of C
 customs duty .:_ Non-fulfillment of export obligations by the
 impoiter- The importer used the entire imported coke in its
 factory for manufacture of pig iron - Demand of duty - Duty
 confirmed and imposition of penalty - Held: The assessee ·
 did not divert the goods meant for exporl to the domestic D
 tariff area - Non-fulfillment of exporl obligations were
 compelled by market considerations - Therefore penalty was
 not liable to be imposed.

        Allowing the appeal, the Court                        E
         HELD: 1.1. Under Rule 20(2)(a) of the Customs
 Tariff (Identification, Assessment And Collection of
 Antidumping Duty on Dumped Articles and For
  Determination of Injury) Rules, 1995, where a provisional F
 duty has been levied and where the designated authority
 has recorded a final finding of injury or threat of injury
 and the further finding that the effect of imports in the
 absence of provisional duty would have led to injury, the
 Anti-dumping duty may be levied from the date of G
 imposition of provisional duty. In the present case, the
 final Notification dated 27.10.1998 is said to come into
 force from the date of the first Notification dated 6.5.1998
 imposing provisional duty in the present case. It is clear
 that as the final Notification dated 27.10.1998 has been H
876      SUPREME COURT REPORTS                (2015] 8 S.C.R.


A superseded by the Notification dated 19.5.2000, the
    appellant would have had to pay Anti-dumping duty at
    the rate of US$ 24.95 per metric tonne as indisputably it
    falls within Item No.7 of the said Notification. [Para 14]
    [887·B·E]
B
           1.2. The exception carved out in the Notification
    dated 19.5.2000 was pursuant to a minutes of meeting
    dated 25.11.1999 by the Secretary (Steel) and
    representatives of Mini Blast Furnace producers of
C Metallurgical Coke. On reading the minutes, it becomes
    clear that Anti-dumping duties that had been imposed
    upon the Blast Furnace Industry had an adverse impact
    upon the industry and that the intention of levying an
    Anti-dumping duty was not to harm their interests. The
D exemption that was contemplated by the minutes of such
    Blast Furnace units was something that could take place
    only in the future. No exception was carved out before
    19.5.2000 in favour of Blast Furnace Manufacturers either
    when the provisional Anti-dumping duty was first
E · imposed or when the final Notification dated 27 .10.1998
    was issued. [Paras 15, 16 and 17] (887-F-G; 889-A·B]

         1.3. However, the Commissioner has held that
  the appellant is liable to pay Anti-dumping duty only under
F the Notification dated 27.10.1998. The rate prescribed In
  the said Notification is lesser than the rate that would
  apply under the Notification dated 19.5.2000. As there
  was no appeal by the revenue against this finding of the
  Commissioner, the Tribunal could not have enhanced
G the rate at which the appellant would have to pay Anti·
  dumping duty in the appellant's own appeal. The
  appellant cannot be worse off by reason of filing an
  appeal. To this limited extent, the appellant succeeds and
H the Tribunal's order is set aside. The appellant will have
     MIS. JASWAL NECO LTD. v. COMMISSIONER OF                  877
             CUSTOMS, VISAKHAPATNAM

to pay Anti-dumping duty calculated at the rates specified A
only in Notification No. 81/98 dated 27.10.1998. [Para
18) [889-G-H; 890-A-B]

   Pig Iron Manufacturers Association v. Designated
   Authority, Ministry of Commerce, 2000 (116) ELT 67          B
   (Tribunal)- referred to. -

       2.1. A reading of the Notification No. 30 of 1997
makes it clear that interest at the rate of 24%.per annum            •
is only liable to be paid, if at the time of clearance of the C
importE!d materials, the importer executes a bond in
which such interest is stated to be payable. The bond
executed in the present case, says nothing about any
interest that is payable in case the conditions of the
Notification No.30 of 1997 are not met. On this ground o
alone, it is clear that no interest is payable on any of the
customs duties that are due from the appellant. [Para
20) [891-C-D]

        2.2. The levying of interest can only be by a E
 substantive provision and such levy can only be
 prospective. The Customs Act itself contained no
 provision for levy of interest until 13.7 .2006. Section 18(3)
 was added only with effect from 13.7.2006. In the
 present case the provisional assessment had been made F
 in 1998 and the final assessment only on 4.11.2004 by
 the Commissioner. Both these dates being prior to
-13.7.2006, no interest is chargeable under Section 18 of
 the Customs Act, for the period in question in the present
 case. [Paras 22, 23 and 24) [892-A, D; 893-B]                  G

   J.K. Synthetics Ltd. v. Commercial Taxes Officer(1994)
   4SCC276; India Carbon Ltd. v. StateofAssam(1997)
   6 SCC 479: 1997 (3) Suppl. SCR 1 - relied on.
                                                               H
    878         SUPREME COURT REPORTS                  [2015) 8 S.C.R.


    A        Commissioner of Customs (Preventive) v. Goyal
             Traders (2014) 302 ELT 529- approved.

                 3. 'Additional duty' and 'special additional duty'
          would include "any sum chargeable on that article under
    B     any law for the time being in force as an addition to, and
          in the same manner as, a duty of customs". The very
          words "as an addition to, and in the same manner as"
I
          have been used in Section 23 of the Finance Act of 1963
          when what was sought to be levied was only a
    C     surcharge. By way of contrast, Section 24(3) of the
          Finance Act of 1963, when it levies a different dµty - a
          regulatory duty of customs - uses the expression "in
          addition". It is clear, therefore, that what is referred to in
          Section 3(2) and 3A(2) is only a surcharge or an
    D     additional duty of customs .. The words "in the same
          manner" also point to the same conclusion. It is clear
          on a reading of the Customs Tariff (Identification,
          Assessment And Collection of Antidumping Duty on
          Dumped Articles and For Determination of Injury) Rules,
    E     1995, that Anti-dumping duty apart from being a separate
          levy from a levy of customs duty is also levied in a
          completely different manner from that of customs duty.
          [Paras 32 and 33] [898-G; 900-H; 901-A-D]

    F       4. The appellant before us has not diverted goods
      meant for export to the domestic tariff area. Market
      considerations made it difficult, if not impossible, for the
      appellant to fulfill its export obligations and, therefore,
      the penalty imposed in the present case, ought to be set
    G aside. [Para 37] [904-H; 905-A]

                             Case Law Reference
          2000 (116) ELT 67 (Tribunal) referred to          Para 11
    H     (2014) 302 ELT 529               approved         Para 24
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                      879
            CUSTOMS, VISAKHAPATNAM

(1994) 4 sec 21s                  relied on        Para 24        A
1997 (3) Suppl. SCR 1             relied on        Para 25
      CIVILAPPELLATEJURISDICTION: Civil Appeal No.
7189 of2005

       From the Judgment and Order No. N754N\/ZB/2005/            B
C-11 dated 18.08.2005 of the Custom Excise & Service Tax
Appellate Tribunal, West Zonal Bench, Mumbai in Appeal No.
C/125/05-Mum.                                 .1/ J

      V. Lakshmikumran, M. P. Devanath, Vivek Sharma, Atul        C
Gupta, R. Ramchandran, Aditya Bhattacharya, Heniant Bajaj,
Anandh K., L. Charanaya for the Appellant.   • -

      K. Radhakrishnan, Arijit Prasad, Rashmi Malhotra, B.
Krishna Prasad for the Respondent.          ,:•:                  D
                                             •
      The Judgment of the Court was delivered ,by
                                                  .
       R. F. NARIMAN, J. 1. The appellant is engaged in the
manufacture of pig iron. The appellant imported Low Ash E
Metallurgical (LAM) Coke under seven Bills of Entry, against
four advance licenses without payment of basic customs duty
(BCD) levied under Section 12 of the Customs Act, 1962,
special customs duty (SCD) levied under Section 68 of the
Finance Act, 1996, special additional duty (SAD) levied under F
Section 3Aof Customs Tariff Act, 1975 and Anti-dumping duty
(ADD) levied under Section 9Aofthe Customs Tariff Ad, 1975
during the period June 1998 to August 1998, which were
exempt from duty vide (i) Notifications No. 30/97 Cus dated
1.4.1997, (ii) Sr. No.4 of Notification No.12/97 Cus dated G
1.3.97, (iii) Sr. No.3 of the Notification No.34/98-Cus dated
13.6.1998, and (iv) Notification No.41/97-Cus dated 30.4.97
respectively.

     · 2. At the time of import, the appellant furnisned a bond   H
880         SUPREMECOURT REPORTS                   [2015] 8 S.C.R.


A     containing an undertaking to pay duty on imported goods
      cleared under Notification No.30/97 and 41/97 in the event of
      failure to fulfill its export obligation.

            3. It is an admitted position thatthe appellant failed to
B fulfill its export obligation in the terms of the exemption
  notifications. The entire LAM so imported has instead been
  used by the appellant in its factory for the manufacture of pig
  iron.

c            4. Demand of duty of Rs.7.21 crores was sought to be
      raised. The break up of demand of Rs.7.21 crores is as under:
      1.     Basic Customs Duty                 Rs.1.01 crores
      2.     Antidumping Duty                   Rs.5.00 crores
D 3.         Special Customs Duty               Rs.0.50 crore
      4.     Special Additional Duty            Rs.0.66 crore
      5.     Cess                               Rs.0.02 crore
             Total                              Rs.7.21 crores.
E
             5. Pending final adjudication of the show cause notice
      by the Commissioner, the appellant duly paid the entire duty
      payable towards BCD, SAD and SCD after considering partial
      exports already made. The appellant did not make any
F     payment towards ADD.

         6. The Commissioner of Customs vide Order dated
  4.11.2004 confirmed the duty demand of Rs.3.37 crores and
  imposed a penalty of Rupees Twenty lakhs. According to the
G learned Commissioner, since the appellant after issuance of
  the show cause notice paid duty of Rs.1,66, 18,563/-, the
  differential duty to be paid amounted to Rs.1,70,98,510/-.
  Further, interest on the said amount at 24% was also held to
  be payable.
H
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                       881
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

        7. The appellant appealed to CESTAT. Vide the              A
impugned judgment dated 18.8.2005, CESTAT partly allowed
the appeal by remanding the matter to the original authority to
calculate duty, interest, and penalty in accordance with the
findings contained in its judgment. The basic difference
be!tween CESTAT's judgment and that of the Commissioner            B
is that interest was reduced from 24% to 15%, but the Anti-
dumping duty was increased by applying the higher rates
specified by the final Notification No.69 of 2000.

        8. Shri Lakshmikumaran, learned advq_cate for the          C
appellant did not dispute before us that the appellant failed in
its export obligations and was, therefore, not liable to be
exempted so far as customs duty is concerned. He, therefore,
conceded that basic customs duty and the special customs
duty as well as special additional duty was payable by the         D
appellant. However, he disputed that Anti-dumping duty was
payable at all stating that the appellant was exempt under
Notification No.69 of 2000. He further argued that no interest
is chargeable on any of the four duties inasmuch as the bond
that was furnished under Notification No.30 of 1997 did not        E
stipulate that in the event of default, interest would become
payable. Further, according to him, it is clear that the
assessment in the present case is only provisional and that
being the case, even if the provisions of the Customs Act are      F
made applicable insofar as Anti-dumping duty is concerned,
under the Customs Act itself there was no provision for
collection of interest for the period in dispute as Section 18
was amended to include such a provision only prospectively
with effect from 2006. He further argued, that in any case Anti-   G
dumping duty could not be added for purposes of computing
customs duty, special customs duty and special additional duty.
Also no penalty is imposable inasmuch as nothing
contumacious was done by the appellant and the export
obligation could not be fulfilled o.nly because of bonafide        H
882         SUPREME COURT REPORTS                   [2015] 8 S.C.R. ·


A commercial impossibility. It is contended that nothing has been
  diverted to the domestic tariff area and sold in that area, and
  the entire imports made have been used by the appellant
  captively in its factory for the manufacture of pig iron. He further
  argued that he could not be worse off in an appeal filed only by
B the appellant herein to CESTAT and that on the assumption
  that the appellant was liable to pay Anti-dumping duty, they
  should only pay the said duty at the lower rate prescribed by
  the Commissioner as Revenue had not appealed to the
  Tribunal against the Commissioner's order.
c
         9. Shri Radhakrishnan, learned senior counsel
  appearing on behalf of the revenue countered the aforesaid
  submissions and submitted that the exemption contained in
  the Anti-du[llping duty Notification 69 of 2000 was only
D prospective and, heni::eAnti-dumping duty had to be paid for
  the relevant period. He further submitted that interest in any
  case was payable as Notification No.30 of 1997 independently
  levied a charge of interest. Further, he also supported the
  Commissioner's order and the Tribunal so far as the various
E other aspects of this appeal are concerned.

            10. We have heard learned counsel for the parties. In
      order to appreciate the first submission of Shri
      Lakshmikumaran, namely, thatAnti-dumping duty in the present
F     case ought to be nil, we set out the relevant Notifications -

            "Notification: 22/98-Cus. Dated 06-May-1998

        Metallurgical coke originating in or exported from
G       China PR - Anti-dumping duty

        In exercise of the powers conferred by sub-section (2) of
        section 9Aofthe Customs Tariff Act, 1975 (51of1975),
        read with rule 13 of the Customs Tariff (Identification,
        Assessment and Collection of Anti-dumping Duty on
H
        Dumped Articles and for Determination of Injury) Rules,
 MIS. JASWAL NECO LTD. v. COMMISSIONER OF                     883
 CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

1995, the Central Government on the basis of the              A
preliminary findings of the designated authority, published
in the Gazette of India, Extraordinary, Part I, Section 1,
dated the 2Qth March, 1998 that there is dumping in
respect of the Metallurgical coke falling under Heading
No . .27.04 of the First Schedule to the said Act, and        B
originating in or exported from China P.R. hereby
imposes on the said Metallurgical coke originating in or
exported from China PR, and imported into India, an anti-
dumping duty at the rate of one thousand eight hundred
rupees per metric tonne.                                      c
This notification shall have effect upto and inclusive of
the 5th day of November, 1998."               ...

    "Notification: 82/98/Cus. Dated 27-0ct::'1998             D

Metallurgical coke originating in, or exported
from, China PR -Anti-dumping duty - Notification
No. 22/98-Cus. Rescinded                  ~~ ·

In exercise of the powers conferred by sub-section (2) of     E
section 9Aofthe Customs Tariff Act, 1975 (51of1975),
read with rule 13 of the Customs Tariff (Identification,
Assessment and Collection of Anti-dumping Duty on
Dumped Articles and for Determination of Injury) Rules,
                                                              F
1995, the Central Government hereby rescinds the
notification of the Government of India in the Ministry of
Finance (Department of Revenue), No. 22/98-Customs,
dated the 6th May, 1998, published in the Gazette of India,
Extraordinary, Part II, Section 3, Sub-section (i) vide       G
G.S.R. 243 (E), dated the 6th May, 1998."

    Notification: 81/98-Cus. Dated 27-0ct-1998

Metallurgical coke (Metcoke) originating in, or
exported from, China PR -Anti-dumping dJJY                    H
884      SUPREME COURT REPORTS                   [2015) 8 S.C.R.


A     "Now, therefore, in exercise of the powers conferred by
      sub-section (1) of section 9A of the said Customs Tariff
      Act, read with rules 18 and 20 of the Customs Tariff
      (Identification, Assessment and Collection of Anti-
      dumping Duty on Dumped Articles and for Determination
B     of Injury) Rules, 1995, the Central Government, after
      considering the aforesaid findings of the Designated
      Authority, hereby imposes on Metcoke falling under
      heading No. 27.04 of the First Schedule to the said
      Customs Tariff Act, originating in or exported from China
c     PR and imported into India, an anti-dumping duty
      calculated at a rate as equivalent to the difference
      between Rs. 4673 arid the landed value of Metcoke, per
      metric tonne;
D     2. The anti-dumping duty imposed under this notification
      shall be levied with effect from the date of imposition of
      provisional duty i.e. 5tti of May, 1998."

         11. The final No.tification dated 27.10.1998 was
E challenged by the Pig Iron Manufacturers Association. By its
  judgment reported in Pig Iron Manufacturers Association
  v. Designated Authority, Ministry of Commerce, 2000 (116)
  ELT 67 (Tribunal), the Tribunal passed the following order:-

 F    "12. In the light of the above discussions and findings
      based on the data available on record, we pass the
      following orders:-

      1. All imports of metcoke exported from or originating in
      the People's Republic of China to India be subjected to
G
      anti-dumping duties at the following rates as indicated
      against each exporter:-
      1. China National Coal Industry            : 18.35US$
         Import/Export (Group) Corporation.
H
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                     '
                                                                885
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

  2. China National Mineral Import and        : 24.51US$        A
     Export Corporation.

  3. Shanxi Coal Import Export Group            19.22US$
     Corporation. (Minmetal Group).                             B

  4. Ningxia Xiacheng Import & Export           24.95US$
     Corporation.
                                                                c
   5. China North Industries Corporation.       22.69 US$

   6. Shanghai Pacific Chemicals (Group)        19.22 US$
      Corporation Ltd.                                          D

  7. All other exporters.                       24.95 US$


  2. SubjeCt to these modifications, the final findings dated   E
  27'" August, 1998 of the D.A. are confirmed. The
  Corrigendum dated znd September, 1998 is set aside."

      12. Pursuant to the Tribunal's judgment, the Central
Government issued a Notification dated 26.5.2000 as follows:-   F

  "Now, therefore, in exercise of the powers conferred by
  sub-section (1) of Section 9A read with sub-section (6)
  of Section 3 of the said Customs Tariff Act and sub-
  section (1) of Section 25 of the Customs Act, 1962 (52        G
  of 1962), and in supersession of the notification of the
  Government of India in the Ministry of Finance
  (Department of Revenue) No. 81 /98- Customs, dated the
  27'" October, 1998 [ GS.R. 644 (E), dated the 27th
  October, 1998], except as respects things done or             H
                        ...
886                SUPREME COURT REPORTS                              [2015] 8 S.C.R.


A         omitted to be done before such supersession, the Central
          Government hereby imposes on Metcoke falling under
          heading No. 27.04 of the First Schedule to the said
          Customs TariffAct, originating in, or exported from, China
          PR and imported into India, by the exporters mentioned
 B        in column (2) of the Table hereto annexed, an anti-
          dumping duty of an amount equivalent to the rate indicated
          in column (3) of the said Table, converted into Indian
          currency with reference to the rate of exchange as in force
          on the date on which a bill of entry is presented under
c         Sf¥Ction 46 of the said Customs Act, 1962 (52of1962)."

                                                                 . Rae porn:Etric tcre
      1---    --   ~·



D              (1)                            (2)                          (3)
      ' 1.              , 01ra N:iicnal QB IrtiJslry
      I                     lnp:xt/8fxxt (Go.4:>) Ol):xltction   : USS 1835

          2                                                      !   U$2451
E                                                                '         .
                                                                 I
                   --       .-                           -.
          3             : S'al<i coo lrrµrt Elqnt Go.4:>             U$1922
      I                 i Caµ:ralirn. (Mmaa Go.4:>)
      I                 I

 F                      , NrgxiaXia:i"all lrrpat &Elqnt          l U$2495
                        , Caµ:ralirn                             '


      j5                · Oina N:rth lrd.Sries GxJ:xralion       'U$22~
                                                                 I

                        · Sa (Jlci Pa:ificamt:as(Gtx.p)              U$1922
G                       j   Cap:rairn Ltd

                                                                 l USS2495
          Nothing contained in this notification shall apply to imports
H         of Metcoke by a manufacturer of pig iron or steel using a
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                               . 887
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.)

   blast furnace if he follows the procedure set out in the                 A
   Customs (Import of Goods at Concessional Rate of Duty
   for Manufacture of Excisable Goods) Rules, 1996."
                                                              ..-...   '


        13. The bone of contention in the present appeal is the
last paragraph of this Notification.                 ·      · l'-' B

         14. It is clear that under Rule 20(2)(a) of the Customs '•ri•
Tariff (Identification, AssessmentAnd Collection of Antidumping
Duty on Dumped Arti9les and For Determination of lnjurr)_
Rules, 1995, where a provisional duty has been levied and                   c
where the designated authority has recorded a final finding'of
injury or threat of injury and the further finding that the effect of
imports in the absence of provisional duty would have led to
injury, the Anti-dumping duty may be levied from the date of
imposition of provisional duty. In the present case, therefore, D
it will be noticed that the final Notification dated 27.10.1998 is
said to come into force from the date of the first Notification
dated 6.5.1998 imposing provisional duty in the present case.
It is clear that as the final Notification dated 27.10.1998 has
been superseded by the Notification dated 19.5.2000, the E
appellant would have had to pay Anti-dumping duty at the rate
of US$ 24.95 per metric tonne as indisputably it falls within
Item No. 7 of the said Notification.

        15. It will be noticed that the exception carved out in F
the Notification dated 19.5.2000was pursuant to a minutes of
meeting dated 25.11.1999 by the Secretary (Steel) and
representatives of Mini Blast Furnace producers of
Metallurgical Coke. These minutes of meeting state as
follows:-                                                       G

  "The Representatives of IMCOM (Indian Metallurgical
  Coke Manufacturers Association) said that IMCOM'
  represents both the petitioners i.e. M/s. BLA Industries
  and Industries and Commerce Association in the anti.                      H
888      SUPREME COURT REPORTS                   [2015) 8 S.C.R.


A     dumping duty petition against import of metcoke of
      Chinese origin. They explained that while anti dumping
      duty was essential for the survival of the domestic coke
      producers, the blast furnaces have never been their
      principal customers and it was not their intention to harm
 B    the blast furnaces industry.

      5. After detailed deliberations it was agreed between
      Indian Metallurgical Coke Manufacturers Association
      (IMCOM) andAssociation of Indian Mini Blast Furnaces
C     (AIM) that the blast furnace units were not the principal
      market that the domestic coke producers cater to. The
      market to which the domestic coke producers cater to
      companies ferrous and non-ferrous foundries, ferro alloys
      producers, soda ash producers, zinc usmelting uriits
D     some 'other chemical units and various SSI units.

      6. Since the imposition of the anti dumping duty the blast
      furnace units had to resort to import from expensive
      sources like Russia, Japan etc. In view of this it was
E     suggested by the AIM that the blast furnace units could
      be exempted from paying ADD on import of metallurgical
      coke of Chinese origin, provided this import is for actual
      use by the blast furnace units. The list of blast furnace
      units which will be covered by this exemption is also
 F    enclosed.

      7. Considering the financial difficulty of the members of
      AIM, IMCOM agreed that they have no objection if the
      government exempts the blast furnace industry from the
G     purview of the anti-dumping duty. Metcoke will be
      imported under OGL with Actual user Conditions for blast
      furnace industry without ADD. IMCOM reiterated that
      while the continuation of the ADD on metcoke of Chinese
      origin is vital for the survival of the indigenous coke
 H    manufacturers they also agreed that the exemption of
     M/S. JASWAL NECO LTD. v. COMMISSIONER OF                   889
    CUSTOMS, VISAKHAPATNAM [R. F. NARI MAN, J.]

   the blast furnace units from ADD was vital for their         A
   survival."

        16. On reading these minutes it becomes clear thatAnti-
dumping duties that had been imposed upon the Blast Furnace
Industry had an adverse impact upon the industry and that the B
intention of levying an Anti-dumping duty was not to harm their
interests. Paragraphs 6 and 7 of the said minutes in particular
seem to suggest that the exemption that was contemplated by
the minutes of such Blast Furnace units was something that
could take place only in the future.                            C

         17. Quite apart from this, it is clear that no exception
was carved out before 19.5.2000 in favour of Blast Furnace
 Manufacturers either when the provisional Anti-dumping duty
was first imposed or when the final Notification dated D
27 .10.1998 was issued. It is clear that the last part of the
Notification dated 19.5.2000 creating an exception in favour
of persons like the appellant has no reference to the earlier
proceedings in the case and is obviously intended to apply
only prospectively. This is also clear from the language used E
in the said clause - 'nothing contained in the Notification "shall
apply to imports" .... Using a Blast Furnace "if he follows" the
procedure set out in the Customs "import of goods at
concessional rate of duty for manufacture of excisable goods"
Rules, 1996'. The language of the aforesaid clause applies F
only in futuro and we are afraid that Shri Lakshmikumaran's
first argument must, therefore, fail.

        18. However, Shri Lakshmikumaran is on firmer ground
when he submitted before us that the Commissioner has held G
that the appellant is liable to pay Anti-dumping duty only unq!'!r
the Notification dated 27 .10.1998. The rate prescribed in the
said Notification is lesser than the rate that would apply un~~r
the Notification dated 19.5.2000. As there was no appeal by.
the revenue against this finding of the Commissioner, the H
890           SUPREME COURT REPORTS                 (2015) 8 S.C.R.


A Tribunal could not have enhanced the rate at which the appellant
    would have to pay Anti-dumping duty in the appellant's own
    appeal. The appellant cannot be worse off by reason of filing
  ,,an appeal. To this limited extent, the appellant succeeds and
    the Tribunal's order is set aside. The appellant will have to
B pay Anti-dumping duty calculated at the rates specified only in
    Notification No. 81/98 dated 27.10.1998.
          19. It was argued by Shri Lakshmikumaran that the
  appellant was not liable to pay interest on any of the customs
C duties for which it was held liable by the Commissioner's order.
  He referred us to Notification No.30of1997, the relevant part
  of which reads as follows:

        "In exercise of the powers conferred by sub-section (1)
o     · of section 25 of the Customs Act, 1962 (52of1962) the
        Central Government, being satisfied that it is necessary
        in the public interest so to do, hereby exempts materials
        imported into India, against an Advance Licence with
        Actual User Condition in terms of para 7.4 of the Export
E       & Import Policy 1997-2002 notified by the Government
        of India in the Ministry of Commerce vide Notification
        No.1/1997-2002 dated the 31•1 March, 1997 (hereinafter
        referred to as the said licence), from the whole of the
        duty of customs leviable thereon which is specified in
F       the First Schedule to the Customs Tariff Act, 1975 (51 of
        1975) and from the whole of the additional duty leviable
        thereon under Section 3 of the said Customs Tariff Act,
        subject to the following conditions namely:-
                             1

G      (i)     xxxxxx
       (ii)   That the importer at the time of clearance of the
              imported materials executes a bond with such
              surety or security and in such form and for such sum
H             as may be specified by the Assistant
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                     891
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

        Commissioner of Customs binding himself to pay           A
        on demand an amount equal to the duty leviable,
        but for the exemption, on the imported materials in
        respect of which the conditions specified in this
        notification have not been complied with, together
        with interest at the rate of twenty-four percent per     B
        annum from the date of clearance of the 'said
        materials."

         20. A reading of this Notification makes it clear that
interest at the rate of 24% per annum is only liable to oe'paid c
if at the time of clearance of the imported materials the importer
executes a bond in which such interest is stated to be payable.
We have been shown the bond executed in the present case.
It says nothing about any interest that is payable in case the
conditions of the Notification No.30 of 1997 are not met. On D
this short ground alone, it is clear that no interest is payable on
any of the customs duties that are due from the appellant.

     . 21. It was also argued by Shri Lakshmikumaran that
Section 101 of the Finance Act, 2009 has been given a E
retrospective application with effect from 1.1.1995. Section
9A sub-section (8) as substituted with effect from 1.1.1995
reads as follows:-

  "(8) TheprovisionsoftheCustomsAct, 1962(52of1962)              F
  and the rules and regulations made thereunder, including
  those relating to date of determination of rate of duty,
  assessment, non-levy, short levy, refunds, interest,
  appeals, offences and penalties shall, as far as maybe,
  apply to the duty chargeable under this section as they       G
  apply in relation to duties leviable under that Act."

       22. Even though the Customs Act would necessarily
become attracted to Section 9A of the Customs Tariff Act
insofar as Anti-dumping duty is concerned, learned counsel H
892          SUPREME COURT REPORTS                       [2015) 8 S.C.R.


A     further submitted that the Customs Act itself contained no
      provision for levy of interest until 13. 7 .2006. Section 18(3)
      was added only with effect from 13.7.2006 and reads as
      follows:-

8        "(3) The importer or exporter shall be liable to pay
         interest, on any amount payable to the Central
         Government, consequent to the final assessment order
         under sub-section (2), at the rate fixed by the Central
         Government under Section 28AB from the first day of
C        the month in which the duty is provisionally assessed till
         the date of payment thereof."

               23. It is clear that on the facts of the present case the
      provisional assessment had been made in 1998 and the final
o     assessment only on 4.11.2004 by the Commissioner. Both
      these dates being prior to 13.7.2006, Shri Lakshmikumaran
      is right and no interest is chargeable under Section 18 of the
      Customs Act, for the period in question.

E            24. In Commissioner of Customs (Preventive) v.
      Goyal Traders, (2014) 302 ELT 529, the Gujarat High Court
      has held as under:-

         "17. In the present case, we find that prior to introduction
         of sub-section (3) of Section 18 of the Act in the present
F
         form, there was no liability to pay interest on differel'!ce
         between finally assessed duty and provisionally
         assessed duty upon payment of which the assessee may
         have cleared the goods. It was only with effect from
G        13. 7.2006 that such charging provision was introduced
         in the statute. Upon introduction therefor such provision
         created interest liability for the first time w.e.f. 13. 7.2006.
         In absence of any indication in the statute itself either
         specifically or by necessary implication giving
H        retrospective effect to such a statutory provision, we are
    MIS. JASWAL NECO LTD. v. COMMISSIONER OF                      . 893
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

  of the opinion that the same cannot be applied to cases          A
  of provisional assessment which took place prior to the
  said date. Any such application would in our view amount
  to retrospective operation of the law."

       We respectfully agree with the aforesaid view. In B
addition, itis clear that this Court has held thatthe levying of
interest can only be by a substantive provision (See: J.K.
Synthetics Ltd. v. Commercial Taxes Officer, (1994) 4 SCC
276 at paragraph 16), thereby making it clear that such levy
can only be prospective.                                         C

       25.  Further, in India Carbon Ltd. v. State of Assam,
(1997) 6 SCC 479, this Court held:-
  "11. Section 9(2-A) makes applicable to the assessment,
                                                                   D.
  re-assessment, collection and enforcement of Central
  sales tax the provisions relating to offences and penalties
  contained in the state Acts as if the Central sales tax
  was a State sales tax. But Section 9(2-A) makes no
  reference to interest.                                           E
  12. There is no substantive provision in the Central
  Act requiring the payment of interest on Central sales
  tax. There is, therefore, no substantive provision in the
  Central Act which obliges the assessee to pay Jnterest
                                                                   F
  on delayed payments of Central sales tax.        ·

  13. Now, the words "charging or payment of interest" in
  Section 9(2) occur in what may be called the latter part
  thereof. Section 9(2) authorises the sales tax authorities
  of a State to assess, reassess, collect and enforce              G
  payment of the Central sales tax payable by a.dealer as
  if it was payable under the State Act; this is the first part
  of Section 9(2). By the second part thereof, these
  authorities are empowered to exercise the powers they
                                                                   H
894         SUPREME COURT REPORTS                   (2015] 8 S.C.R.


A       have under the state Act and the provisions of the state
        Act, including provisions relating to charging and payment
        of interest, apply accordingly. Having regard to what has
        been said in the case of Khemka & Co., it must be held
        that the substantive law that the States' sales tax
B       authorities must apply is the Central Act. In such
        application, for procedural purposes alone, the
        provisions of the State Act are available. The provision
        relating to interest in the latter part of Section 9(2) can
        be employed by the states' sales tax authorities only if
c       the Central Act makes a substantive provision for the levy
        and charge of interest on Central sales tax and only to
        that extent. There being no substantive provision in the
        Central Act requiring the payment of interest on Central
        sales tax the States' sales tax authorities cannot, for the
D
        purpose of collecting and enforcing payment of Central
        sales tax, charge interest thereon.

        14. The requirement of the 1st respondent's sales tax
        authorities that the appellants should pay interest at the
E       rate of 24% p.a. on delayed payment of Central sales
        tax under the provisions of Section 35(A) of the State
        Act must, therefore, be held to be bad in law."

          26. Given the aforesaid, it is clear that no interest is
F chargeable on any of the customs duties that are payable on
  the facts of the present case.
         27. It now remains to consider whether Anti-dumping
  duty can be included in calculating special customs duty and
G special additional duty.
             28. Special customs duty is levied under Section 68 of
      the Finance Act No.2of1996, which reads as follows:-

        "68. Special duties of customs. -(1) In the case of
H
        goods mentioned in the First Schedule to the Customs
      MIS. JASWAL NECO LTD. v. COMMISSIONER OF.                    895
      CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

    Tariff Act, or in that Schedule, as amended from time to       A
    time, there shall be levied and collected as a special dufy
    of customs, an amount equal to two per cent of the value·
    of the goods as determined in accordance with the
    provisions of section 14 of the Customs Act.
                                                                   8
    (2) Sub-section (1) shall cease to have effect after the
    31 •1day of March, 1999, and upon such cesser, section
    6 of the General Clauses Act, 1897) shall apply as if the
    said sub-section had been repealed by the Central Act.
                                                                   c
    (3) The special duties of customs referred to in sub-
    section (12) shall be in addition to any duties of customs
                                                ~r1· "
    chargeable on such goods under the Customs Act or any
    other law for the time being in force.
                                                                    D
    (4) The provisions of the Customs Act and the rules and
    regulations made thereunder, including those relating to
    refunds and exemptions from duties shall, as far as may
    be, apply in relation to the levy and collection of the special
    duties of customs leviable under this section in respect        E
    of any gods as they apply in relation tC>~he levy and
    collection of the duties of customs on such goods under
                                            as
    that Act or those rules and regulations, the case may
    be."
                                                  . "               F
         29. Similarly, special additional duty is levied under
  Section 3A of the Customs Tariff Act inserted by the Finance
· Act of 1998. Section 3A reads as under:-
    "Special additional duty.-(1)     Any article which is
    imported into India shall in addition be liable to a duty     G
    (hereinafter referred to in this section as the special
    additional duty), which shall be levied at a rate to be
    specified by the Central Government, by notification in
    the Official Gazette, having regard to the maximum sales
                                                                  H
896      SUPREME COURT REPORTS                      [2015] 8 S.C.R.


A     tax, local tax or any other charges for the time being
      leviable on a like article on its sale or purchase in India:

      Provided that until such rate is specified by the Central
      Government, the special additional duty shall be levied
B     and collected at the rate of eight per cent of the value of
      the article imported into India.

      Explanation.- In this sub-section, the expression
      "maximum sales tax, local tax or any other charges for
c     the time being leviable on a like article on its sale or
      purchase in India" means the maximum sales-tax, local
      tax, other charges for the time being in force, which shall
      be leviable on a like article, if sold or purchased in India,
      or if a like article is not so sold or purchased which shall
D     be leviable on the class or description of articles to which
      the imported article belongs.
      (2) For the purpose of calculating under this section the
      special additional duty on any imported article, the value
E     of the imported article shall, notwithstanding anything
      contained in section 14 of the Customs Act, 1962 or
      section 3 of this Act, be the aggregate of-
      (i) the value of the imported article determined under
      sub-section (1) of section 14 of the Customs Act, 1962
 F
      (52of1962) or the tariff value of such article fixed under
      sub-section (2) of that section, as the case may be;
      (ii) any duty of customs chargeable on that article under
      section 12 of the Customs Act, 1962), and any sum
G     chargeable on that article under any law for the time being
      in force as an add'1tion to, and in the same manner as, a
      duty of customs, but not including the special additional
      duty referred to in sub-section (1 ); and
H
    MIS. JASWAL NECO LTD. v. COMMISSIONER OF                      897
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

   (iii) the additional duty of custcims chargeable on that       A
   article under section 3 of this Act.

  (3) The duty chargeable under this section shall be in
  addition to any other duty imposed under this Act or under
  any other law for the time being in force.                      8
  (4) The provisions of the CustomsAct, 1962 (52of1962),
  and the rules and regulations made thereunder, including
  those relating to refunds and exemptions from duties
  shall, so far as may be, apply to the duty chargeable under     c
  this section as they apply in relation to the duties leviable
  under thatAct.
  (5) Nothing contained in this section shall apply to any
  article, which is chargeable to additional duties levied
                                                                  D
  under sub-section (1) ofsecton 3 of the Additional Duties
  of Excise (Goods of Special Importance) Act, 1957 (58
  of 1957)."
                                                 t
        30. Section 3(2) of the Customs Tariff Act as it stood at
the relevant time reads as under:                                 E

  "(2) For the purpose of calculating under this section, the
  additional duty on any imported article, where such duty
  is leviable at any percentage of its value, the value of the
  imported article shall, notwithstanding anything contained      F
  in Section 14 of the Customs Act, 1962 (52of1962), be
  the aggregate of-

  (i)    The value of the imported article determined under
         sub-section (1) of the said Section 14 or the tariff     G
         value of such article fixed under sub-section (2) of
         that section, as the case may be; and ·

  (ii)   Any duty of customs chargeable on that article under
         Section 12 of the Customs Act, 1962 (52of1962),          H
898            SUPREME COURT REPORTS                  [2015) 8 S.C.R.


A               and any sum chargeable on that article under any
                law for the time being in force as an addition to,
                and in the same manner as, a duty of customs"

             31. Similarly, Section 3A(2) dealing with special
B     additional duty as it stood at the relevant time reads as under:-

        "(2) For the purpose of calculating under this section the
        special additional duty on any imported article, the value
        of the imported article shall, notwithstanding anything
c       contained in section 14 of the Customs Act, 1962 or
        section 3 of this Act, be the aggregate of-

        (i)     The value of the imported article determined under
                sub-section (1) of section 14 of the Customs Act,
                1962 (52 of 1962) or the tariff value of such article
D
                fixed under sub-section (2) of that section, as the
                case maybe;

        (ii)   Any duty of customs chargeable on that article under
               section 12 of the CustomsAct, 1962 (52of1962),
E              and any sum chargeable on that article under any
               law for the time being in force as an addition to,
               and in the same manner as, a duty of customs; and

        (iii) The additional duty of customs chargeable on that
F             article under section 3 ofthisAct."

          32. It will be noticed that additional duty and special
  additional duty would include "any sum chargeable on that
  article under any law for the time being in force as an addition
G to, and in the same manner as, a duty of customs". What has
  been contended before us is that these words would refer only
  to a surcharge provision and not to a provision which levies an
  independent duty, as the relevant words are "an addition" and
  not "in addition". This argument has considerable force. For
H example, the Finance Act of 1963 made a distinction between
   M/S. JASWAL NECO LTD. v. COMMISSIONER OF                       899
   CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

a surcharge on duties of customs and a regulatory duty of A
customs. Sections 23 and 24 of the said Act are set out
hereihbelow:-

  "23. Surcharge on duties of customs.
                                                                  B
  (1) In the case of goods chargeable with a duty of
  customs which is specified in the First Schedule to the
  Tariff Act as amended by this Act or any subsequent Act
  of Parliament, or in that Schedule read with any
  notification of the Central Government for the time being       c
  in force, there shall be levied and collected as an addition
  to. and in the same manner as, the total amount so
                                                  J "''f1.'
  chargeable, a sum equal to 10 per cent of such amount:

     Provided that in computing the total amount so
                                                                  D
     chargeable, any duty chargeable under Section 2A of
     the Tariff Act or Section 24 of this Act shall not be
     included.
                                                     {!l
  (2) Sub-section(1) shall cease to have effect after the
  31 •1 day of March, 1964 except as respects things done         E
  or omitted to be done before.such cesser; and Section 6
  of the General ClausesAct, 1897 shall apply upon such
  cesser as if the said sub-section had then been repealed
  by a Central Act.                                --
                                                                  F
  24. Regulatory duty of customs.

  (1) There shall be levied and collected, with effect from
  such date as may be specified in this behalf by the
  Central Government by notification in the Official Gazette,     G
  on all goods mentioned in the First Schedule to the Tariff
  Act as amended by this Act or any subsequent Act of
  Parliament, a regulatory duty of customs which shall be

  (a) twenty-five percent of the rate, if any, specified in the   H
900      SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A     said First Schedule read with any notification issued
      under Section 3A or sub-section (1) of Section 4 of the
      Tariff Act; or

      (b) ten per cent of the value of the goods as determined
B     in accordance with the provisions of Section 14 of the
      Customs Act, 1962 whichever is higher:

         Provided that different dates may be specified by the
         Central Government for different kinds of goods,
c     (2) Sub-section ( 1) shall cease to have effect after the
      31" day of March, 1964 except as respects things done
      or omitted to be done before such cesser; and Section 6
      of the General Clauses Act, 1897 shall apply upon such
      cesser as ifthe said sub-section had then been repealed
D
      by a Central Act.

      (3) The duty of customs leviable under this section in
      respect of any goods referred to in sub-section (1) shall
      be in addition to any other duty of customs chargeable
E     on such goods under the Customs Act, 1962.

      (4) The provisions of the Customs Act, 1962 and the. rules
      and regulations made thereunder, including those relating
      to refunds and exemptions from duties, shall, as far as
F     may be, apply in relation to the levy and collection of the
      regulatory duty of customs leviable under this section in
      respect of any goods as they apply in relation to the levy
      and collection of the duties of customs on such goods
      under that Act or those rules and regulations.
G
      (5) Every notification issued under sub-section (1) shall,
      as soon as may be after it is issued, be placed before
      each House of Parliament."

H         33. It will be noticed that the very words "as an addition
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                     901
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

to, and in the same manner as" used in Section 3(2) and 3A(2) A
of the Customs Tariff Act have been used in Section 23 of the
Finance Act of 1963 when what was sought to be lev·ed was
only a surcharge. By way of contrast, Section 24(3) when it
levies a different duty- a regulatory duty of customs - uses
the expression "in addition". It is clear,therefore, that what is B
referred to in Section .3(2) and 3A(2) is only a surcharge or an
additional duty of customs. The words "in the same manner"
also point to the same conclusion. It is clear on a reading of
the Customs Tariff (Identification, Assessment And Collection
of Antidumping Duty on Dumped Articles and For C
Determination of Injury) Rules, 1995, that Anti-dumping duty
apart from being a separate levy from a levy of customs duty
is also levied .in a completely different manner from that of
customs duty.
                                                                 D
       34. We may add, that after 2002, Sections 3(2) and
3A(2) have been amended with effect from 1.3.2002 so as to
expressly not include Anti-dumping duty. The amended Section
3(2) reads as follows:-
                                                                 E
  "(2) For the purpose of calculating under this section, the
  additional duty on any imported article, where such duty
  is leviable at any percentage of its value, the value of the
  imported article shall, notwithstanding anything contained
  in Section 14 of the CustomsAct 1962 (52of1962), be
  the aggregate of-

  (i) The value of the imported ?1rticle determined under
  sub-section ( 1) of the said Section 14 or the tariff value
  of sue~ article fixed under sub-section (2) of that section,   G
  as the case may be; and

  (ii) any duty of customs chargeable on that article under
  Section 12 of the Customs Act, 1962 (52of1962), and
  any sum chargeable on that article under any law for the       H
902            SUPREME COURT REPORTS                   [2015] B S.C.R.


A       time being in force as an addition to, and in the same
        manner as, a duty of customs, but does not include -

        (a)     the special additional duty referred to in section
                 3A;
 B
        (b)     the safeguard duty referred to in sections BB and
                 BC;

        (c)     the countervailing duty referred to in section 9;

c       (d)     the anti-dumping duty referred to in section 9A;
                 and

        (e)     the duty referred to in sub-section (1 )"

      The amended Section 3A(2) reads as follows:-
D
        "(2) For the purpose of calculating under this section the
        special additional duty on any imported article, the value
        of the imported article shall, notwithstanding anything
        contained in section 14 of the Customs Act, 1962 or
 E      section 3 of this Act, be the aggregate of-

        (i)     The value of the imported article determined under
                sub-section (1) of section 14 of the Customs Act,
                1962 (52 of 1962) or the tariff value of such article
 F              fixed under sub-section (2) of that section, as the
                case maybe;
        (ii)   Any duty of customs chargeable on that article under
               section 12 of the c'ustomsAct, 1962 (52of1962),
               and any sum chargeable on that article under any
G
               law for the time being in force as an addition to,
               and in the same manner as, a duty of customs, but
               does not include-
                (a) the safeguard duty referred to in sections BB
H               and BC;
    M/S. JASWAL NECO LTD. v. COMMISSIONER OF                       903
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.]

        (b) the countervailing duty referred to in section 9;      A

        (c) the anti-dumping duty referred to in section
            9A;

        (d) the special additional duty referred to in sub-
                                                                   B
            section (1); and

  (iii) the additional duty of customs chargeable on that
         article under section 3 of this Act."

      35. The relevant budget circulars of the Finance Bill 2002   C
and 2003 respectively read as follows:-

  "Miscellaneous

  1.    Doubts have been expressed about the method of
                                                                   D
        computing the additional duty of customs (CVD)
        under section 3 of the Customs Tariff Act, 1975.
        The doubt raised is on the point that whether anti-
        dumping duty, safeguard duty and other duties etc.
        should be taken into account while computing the
                                                                   E
        CVD .

        .In this regard, it is clarified that for computing the
         CVD, only the value of the imported article as
         determined under section 14 of the Customs Act,
         1962, including the landing charges, if any and the       F
         basic customs duty· chargeable at the rates
         specified in the First Schedule to the said Customs
         Tariff Act (read with any notification for the time
         being in force in respect of the basic customs duty)
                                                                   G
         needs to be taken into account. Other duties such
         as anti-dumping duty, safeguard duty, etc. should
         not be taken into account."
        "In the explanatory notes for the last year's budget
         it was clarified that for computing the CVD, only         H
904         SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A             the value of imported article as determined under
              section 14 of the CustomsAct, 1962, including the
              landing charges, if any and the basic customs duty
              chargeable at the rates specified in the First
              Schedule to the Customs Tariff Act (read with any
B             notification for the time being in force in respect of
              the basic· customs duty) needs to be taken into
              account. Other duties such as anti-dumping duty,
              safeguard duty, etc. should not be taken into
              account. A view has been expressed that section
c             3Aofthe Customs Tariff Act does not permit such
              interpretation. To place the matter beyond doubt, it
              is proposed to amend section 3 and section 3A of
              the Customs Tariff Act so as to make it very clear
              that for computation of additional duty of customs,
D
              only the c.i.f. price, landing charges and basic
              customs duty will be included. Similarly for
              determining special additional duty of customs
              (SAD), only the c.i.f. price, landing charges, basic
E             customs duty and the additional duty of customs
              will be included. Other duties such as anti-dumping
              duty safeguard duty, etc. shall not be taken into
              account. This amendment will have effect from
              1.3.2002."
F          36. Though it is stated that the object of the amendment
  is to clarify and set at rest doubts, it is not necessary to decide
  whether this amendment is clarificatory and, therefore,
  retrospective in view of what has already been held by us
G above.

             37. As far as penalty is concerned, we feel that the
      appellant before us has not diverted goods meant for export
      to the domestic tariff area. We are satisfied that market
      considerations made it difficult, if not impossible, for the
H
    MIS. JASWAL NECO LTD. v. COMMISSIONER OF                        905
    CUSTOMS, VISAKHAPATNAM [R. F. NARIMAN, J.)

appellant to fulfill its export obligations ahd are, therefore, of A
the view that the penalty imposed in the present case ought to .
be set aside.
       38. The appeal is, accordingly, allowed in the aforesaid
terms and the judgment of CESTAT is set aside.                  B

Kalpana K. Tripathy                               Appeal allowed.