TMI Blog1990 (10) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... sessments were completed on Bills of Entry Nos. 1236 and 1237 on 23-11-89. The goods, however, were detained under Sec. 110 of the Customs Act. Aggrieved by the detention of the goods, the appellants approached the High Court for release of the goods. Finally, the matter went up to to the Supreme Court. The Supreme Court directed the Department to issue a show cause notice within a period of four weeks from 8-1-1990 and complete adjudication proceedings within a further period of three weeks. The appellants, again, moved the High Court of Calcutta and on 11-1-1990, the Calcutta High Court passed orders permitting the appellants to keep the goods in bonded warehouse under Sec. 49 of the Customs Act, 1962. 3. A show cause notice dated 2-2-1990 was issued to the appellants alleging, inter alia, that the country of origin certificate, issued by Korean Foreign Commodity Inspection Committee, Pyongyang, Korea are found to be incorrect, forged and manipulated and proposed to determine the assessable value of the goods on the basis of the value of goods of Japanese Origin or Taiwan Origin or South Korea Origin. It is also alleged that the duty difference for four Bills of Entry amounts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is finding, he relied on the letter dated 19-12-1989 issued by the Embassy of Korea at Singapore. He rejected the letter dated 19-2-1990 produced by the appellants relying on the letter dated 21-2-1990 of DRI faxing the letter dated 20-2-1990 of Commercial Section of DPR North Korea Embassy at Delhi stating that the letter dated 9-2-1990 is invalid. He also held that there is no direct evidence that the goods are of DPR Korea Origin. He observed that it is strange that in North Korea, a company dealing in building materials choose to export Zip Rolls to a trader in Singapore. The quantity covered in the four certificates does not tally with the quantity imported, which is a subject-matter of adjudication. He also observed that the goods do not bear any markings and numbers and, therefore, the goods cannot be related to the country of origin. He also relied on the admission made by the Counsel that on the basis of country of origin certificates, it is not possible to relate the goods to the certificates. He, further, held that since the country of origin is proved to be incorrect, the value declared is incorrect. In the absence of clear evidence, as to the country from where the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the Commercial Section Embassy of the DPR Korea, Singapore. 3. Letters dated 9-2-1990 and 20-2-1990 issued by the Commercial Section of the Embassy of the DPR Korea, New Delhi addressed to M/s. Shiv Shankar International, Calcutta. 4. The Dte s letter of even number dated 14-2-1990 addressed to the Commercial Section of the Embassy of the DPR Korea, New Delhi and their reply bearing No. 4/90 dated 15-2-1990 and No. 214 dated 20-2-1990. 9. On receiving the documents, we heard both the parties. Shri Singh, in support of his contention that the certificates of origin were forged, relied on the endorsement made on these certificates which reads as under : Seen. Found to be incorrect and forged . 10. He also produced the reply dated 20-2-1990 and the letter dated 20-2-1990 to the D.R.I. 11. Rebutting the arguments of Shri Singh, Shri Harbans Singh, Ld. Advocate submitted that the endorsement made on certificates of origin produced now before this Tribunal cannot be relied upon as there is no reference to the name, who is competent to make the endorsement and no seal and no stamp. From this endorsement, he submitted, it cannot be ascertained whether he is authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing particulars are certified by us. It is ascertained that M/s. D N Textile General Exporters and M/s. Multimill Impex PTE Ltd., Singapore are the only authorised export representative of DPR Korean Zip Products. At present M/s. Korea Namyang Trading Corporation are the only Agency in DPR Korea for export of Zip Products to other countries specially for East and South East Asia. It is also ascertained that M/s. Greenland Textile Pte. Ltd., 1, North Brodge Road, 122-08, High Street, Singapore 0617 (Mailing address: Raffles City, P.O. Box 573, Spore 9117) have not imported any Zip Rolls of DPR Korean origin from M/s. Korea Building Materials Exp. Imp. Corpon. The certificates of Origin No. 128/89 dated 29-7-1989, No. 142/89 dated 18-8-1989, No. 151/89 dated 25-8-1989 and No. 152/89 dated 25-8-1989, copies of which was shown to me. We were surprised to see the certificates of origin, as they were not issued by Korea Foreign Commodity Inspection Committee, Pyongyang. As such the Zip Rolls were not of DPR Korea origin, claimed by M/s. Greenland Textile Pte. Ltd., Singapore. The said Certificates of Origin were not issued by Korean Foreign Commodity Inspection Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os. 128/89,142/89, 151/89 and 152/89 is invalid since it was issued and signed by a person who is not authorised to issue such a certificate. Therefore, the certificates of origin cannot be accepted as genuine and appellants have not produced any convincing evidence in support of their case. They have not adduced any evidence showing that the Korean Foreign Commodity Inspection Committee is the competent authority to issue such a certificate. They have also not adduced any evidence as to how Korean Building Materials Exp. Imp. Corporation exported the goods, in question, to Greenland Textile Pvt. Ltd., Singapore. The No. of Bills of Entry, by which the goods were exported by DPR to Singapore, were also not available. In the light of above, the certificates of origin cannot be accepted. 19. Since the certificates of origin are not genuine, we cannot ascertain the country of origin from which the goods are imported. Therefore, we are of the view that the goods are not imported from DPR Korea. 20. The next question is what should be the assessable value as the country of origin from which the goods are imported, is not ascertainable. 21. Section 14 provides for the determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yards. However, if it is conclusively proved that the goods are not of North Korean origin, then the prices declared are definitely low and should be revised . In paragraph-19 of the order he has observed, Thus, there is no clear direct evidence of the country of origin for the goods presently covered by the adjudication. It is only an indirect evidence that the goods have been imported from North Korea. In paragraph-20 of the order he has stated that no evidence has been adduced to conclusively prove from what country, these goods have been imported except that these have not come from North Korea. He has further observed in the said para that the Department has also not succeeded in giving clear indication as to the prices to be adopted in this regard. He has held that Since the value in respect of the entire 4 consignments in question has been misdeclared, the same is also liable to confiscation under Section 111(m) of the Customs Act, 1962". The above extracts from the impugned order show that the Department was not sure about the correct country of origin of the impugned goods and the Department was also not sure as to what should be the correct price of the goods. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndestinely more than the amount they have actually paid, transaction value under Rule 4 is available, and therefore, it has to be accepted. 23. In this case Rules 5 6 are not applicable as Rules 5 and 6 deal with the transaction value of identical goods and similar goods respectively. The expression identical goods is defined under Rule 2(1)(c) which is as follows : 2. Definitions. - (1) In these rules, unless the context otherwise requires. - (a) ........ (b) ........ (c) Identical goods means imported goods. - (i) which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods; (ii) produced in the country in which the goods being valued were produced; and (iii) produced by the same person who produced the goods or where no such goods are available, goods produced by different person......" The expression similar goods is defined under Rule 2(e) which reads as follows :- (e) Similar goods means imported goods - (i) which although not alike in all respects, have like characteristics and like component ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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