2016(01)LCX0125
IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI
S/Shri Ashok Jindal, Member (J) and R.K. Singh, Member (T)
RAJSI INDUSTRIES
Versus
COMMISSIONER OF CUSTOMS, NEW DELHI (ICD, TKD)
Final Order Nos. C/A/50055-50056/2016-CU(DB), dated 13-1-2016
Advocated By -
Ms. Seema Jain, Advocate, for the Appellant.
Shri K. Poddar, DR,for the Respondent.
[Order per : Ashok Jindal, Member (J)]. -
The appellant M/s. Rajsi Industries and Mr. Rajender Kumar Modi are in appeal against the impugned or-der.
2. The facts of the case are that M/s. Rajsi Industries imported one consignment declaring goods as "Energy Saving Glass Tubes Burner U Shape 32W (parts of CFL)", classifiable under CTH 8539 90 90 from China. The Bill of Entry was assessed by the jurisdictional Commissioner as per NIDB data. The assessed duty was paid by the appellant. During the examination of the container, it was found that the goods were basically combination (group) of 4 uniform sized 2-U shaped sealed CFL loosely packed and placed in an eight hole plastic stand in a way so that each 2-U sealed CFL burner could be separated easily. The appellant declared this combination of four loosely packed 2-U shape sealed glass tube burner as a single entity of U shape 32 Watt CFL burner. However, it is alleged that one 2-U shaped sealed CFL loosely packed. The above description would be independently used for manufacture of CFL having less than 26 Watt and therefore attract anti-dumping duty in terms of Notification No. 55/2009-Cus, dated 26-5-2009. Therefore, it was alleged that the goods have been misdeclared and 100% examination was ordered. The representative samples were drawn and sent to M/s. CRCL, M/s. Electronic Regional Test Lab (North), Okhla, New Delhi, M/s. Elcoma, New Delhi, M/s. Osram, Sonepat, Haryana and M/s. National Physical Laboratory, New Delhi. The samples were returned back by CRCL, Electronic Regional Test Lab and National Physical Laboratory stating that they have no facility for testing of these items. M/s. Elcoma gave the report that it is a cluster of 4-U tube and not possible to join them under one lamp and PCBs, neither available nor sold in the market and each U-tube is of 8W-9W. An opinion is also sought from Mr. R.K. Agarwal, Chartered Engineer, who observed that these are four different pieces of U-tubes and did not find any inter-connections be-tween four pieces of U-tubes to allow continuous flow of gas and it is recommended to be 4 separate ballasts and also stated that he did not find one single set of combination of 4 U-tube being sold in the market commonly. On the basis of these facts, it was held by the adjudicating authority that the appellant had misdeclared the goods as Energy Saving Glass Tubes Burner U Shape 32W (parts of CFL)" and in fact, it is a combination of 4 U shape burner of 8W each, which attracts anti-dumping duty as per Notification No. 55/2009, dated 26-5-2009. Consequently, anti-dumping duty of Rs. 87,59,706/- was confirmed and redemption fine of Rs. 6 lakhs was imposed and penalty of Rs. 25 [lakhs] was imposed on M/s. Rajsi Industries and penalty of Rs. 5 lakhs was imposed on Mr. Rajender Kumar Modi. Aggrieved from the said order, the appellants are before us.
3. Ld. counsel for the appellants appeared before us with the samples of the goods imported and explained their usage. She submits that the goods are to be assessed as presented and it is no doubt that the goods are combination of 4 2-U tube, which is comprising of 32W by making one combination of energy saving glass tube burner. She also submitted that these energy saving burners of 32W are easily available in the market and also produced one manufacture of the same, i.e., M/s. Every Day and produced the photographs thereof. She further submits that as the report of Elcoma is not reliable of being of a private organisation and the report of Shri R.K. Agarwal, Chartered Engineer is also not reliable as the contents of the report are proved incorrect. Therefore, these reports cannot be relied upon and the goods are to be released and they are not liable to pay the anti-dumping duty on the said goods. Consequently, the goods are not liable for confiscation and no penalties are imposable.
4. On the other hand, ld. Departmental Representative reiterated the findings of the impugned order and submits that the impugned order is based on the technical report. Therefore, the adjudicating authority has passed an appropriate order.
5. Heard parties and considered the submissions.
6. During the course of arguments, ld. counsel for the appellant produced the sample of item imported and explained the usage of after importation thereof. For ease of convenience, photographs of the same are reproduced below :-
7. For our satisfaction, we broke out one tube and after breaking the tube, we find that the following picture of the manufactured items from the imported item is of 32W U-Tube manufactured by M/s. Every Day
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From the above photographs, we find that it is a combination of 4 U-tubes joint together to make a tube of 32W, which can be used as one lamp and can be operated by one PCBs and same is marketable in the market and easily available in the market as per the evidences produced by the appellant before us and cannot be segregated without breakage/wastage.
8. Therefore, we hold that the item in question has imported by the appellant is declared correctly as "Energy saving 32W 4 U shaped tubes" as it is an item of 32W, therefore the same does not come under the purview of Notification No. 55/2009-Cus., dated 26-5-2009 to demand anti-dumping duty. In these circumstances, we hold that no anti-dumping duty is leviable on the item in question imported by the appellant. Consequently, the goods are not liable for confiscation and no penalty is imposable on the appellant.
9. With these observations, we set aside the impugned order allow the appeals with consequential relief. The Miscellaneous Application filed by one of the appellant is stands disposed of as the appeals themselves disposed of.
Equivalent 2016 (335) ELT 0331 (Tri. - Del.)