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2021 (12) TMI 855 - AT - CustomsLevy of Anti-dumping duty - import of ‘pre-sensitized positive offset aluminium plates (for offset printing machine)’ - discarding of ‘certificate of origin’, and thereby denying eligibility for exemption and laying the ground for re-determination of origin of the goods, without following the process of verification prescribed in circular no. 31/2016-Cus dated 12th September 2016 - HELD THAT:- Anti-dumping duty is leviable on ‘digital offset printing plates’ within which are three sub-categories, viz., violet, thermal and CtCP. Even if the outcome of the test evidences the impugned goods to be ‘CtCP’, the origin of the goods – both in manufacture and of export – must be from Peoples’ Republic of China for the levy to be valid in law. It has not been controverted that the goods were not procured from the exporter in Malaysia - the ‘certificate of origin’ must be discarded and not by reliance on any circumstantial evidence. Without determination of the authenticity and correctness of the contents of ‘certificate of origin’, the testing of the product is a half measure that may not conclude the proceedings except in circumstances that confirm the declaration of the importer. This should have found a place in the impugned order. The question that follows is whether the first appellate authority, and arising from inability to proceed with determination on merits, is within its competence to direct fresh evidence to be incorporated in the proceedings - proviso to section 128A(3) of Customs Act, 1962 empowers Commissioner of Customs (Appeals) to issue show cause notice subject to conditions prescribed therein and, though rarely resorted to, impliedly authorizes directions, such as re-test of the goods once again for issue of addendum to show cause notice, without compromising principles of natural justice. In the absence of a finding on the nature of the goods, the dispute remains undetermined. The rival claims of feasibility of testing and the futility of the exercise do not suffice for determination and testing appears to be the only option. Learned Consultant has also not placed any alternative for determination of the nature of the goods - However, mere re-testing may not culminate in conclusion of proceedings even if the test report is conclusive enough for determination of the nature of the goods. No less critical to the eligibility is the ‘certificate of origin’ which has also been doubted by the original authority. The first appellate authority has not returned a finding on that aspect which is not dependent on the outcome of the re-test. That lack must be made good. Matter remanded back to the first appellate authority without disturbing the directions in the order impugned - appeal allowed by way of remand.
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