TMI Blog2023 (6) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... at that stage. We do not want to guess here, that it was because they were not filed since the only ground urged was for re-export - That makes it clear that their claim of wrong supply could possibly be an after-thought, which gave birth to the e-mail from supplier! It is thus clear that the Department or at least the Adjudicating Authority never had any chance to address/examine this issue of wrong supply and hence, there was nothing for the Adjudicating Authority to prove or disprove on this, at the time of adjudication. When an irregularity was pointed out, instead of discharging the same, the respondent simply evaded by requesting for re-export. So, if we go by the findings of the Commissioner (Appeals), then it was for the Adjudicating Authority to even explain the irregularity, not just wrong supply . Thus, the burden which was on the respondent was never discharged and hence, there is no question of onus shifting on to the Revenue, to prove, what the learned Commissioner (Appeals) wanted or as desired by the respondent, that there was no wrong supply - The requirements under the burden of proof are covered in Chapter VII of the Indian Evidence Act. Section 123 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination. But, however, the unclear description appears to have prompted the Revenue to open the containers which later on came to be examined by the Dock Officers. It appears that what was found was only PVC Flex Fabrics instead of the declared Polyethylene Laminated in Rolls, which according to them attracted Anti Dumping Duty under Notification No. 79/2010-Cus. dated 30.07.2010. It thus appears that the following doubts/suspicion emerged thereafter: - Similar Bills-of-Entry were cleared by the respondent declaring the unit price as USD 0.65 and USD 0.60 per kg. The Bills-of-Entry under dispute also appeared to be undervalued. The net weight of the fabrics imported under both the Bills-of-Entry is 41375.80 kgs. whereas the importer had declared the total net weight of the consignment as 32400 kgs., resulting in an excess import of 8975.80 kgs. of fabrics. As per Notification No. 82/2011-Cus. dated 25.08.2011, PVC Flex Films originated from China attracted Anti Dumping Duty (ADD) of USD 0.538 per kg. and as such, the impugned goods are amenable to ADD as per the aforesaid Notification. The ADC (Gr-2) in F.No. S.Misc 197/2011-SIIB permitted provisional clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, like Purchase Order dated 23.09.2011, clearly described the product. Specifications of the product are very clear and hence, prima facie, no fault could be found with the declaration by the respondent. The fact of wrong shipment was communicated by the respondent to the supplier on 02.12.2011, which was accepted by the supplier on 05.12.2011, [no such communication/acknowledgement furnished before us by either of the parties] Supplier replied per fax dated 08.12.2011 to the effect that the shipment was for another importer. [ our observation: but however, details of such another importer could have been very well furnished before Adjudicating Authority / Commissioner (Appeals), which is apparently not done ] The supplier regretted for the mistake. With regard to misdeclaration, it is observed that the packing list and the Bill-of-Lading clearly and correctly mentioned the total gross weight and net weight. Excess quantity found during physical examination may be due to wrong supply, for which respondent could not be held responsible as the same was without their knowledge, and the respondent simply went by the declaration made in invoice, packing list and Bill- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly, the unilateral action taken by the Department in the past clearance was held unsustainable. 5.3 Regarding the present appeal, the learned Commissioner (Appeals) holds that the Department should have allowed re-export, as requested, considering the wrong supply. The sum and substance of the order is that the appeal filed by the respondent-importer was allowed with the direction to the respondent to re-export the goods without any payment of fine and penalty. However, if the respondent was interested in clearing the goods for home consumption as per the request of the supplier, then the order passed by the lower authority would be upheld with modification; the action taken by the lower authority was held to be not legal and proper and the Order-in-Original was set aside, with a direction to the lower authority to issue necessary detention certificate for waiver of demurrage and container detention charges. 6. The above has thus resulted in the present appeal. 7. Heard Shri S. Balakumar, Learned Assistant Commissioner representing the appellant-Revenue and Shri Shravan Kochar, Learned Advocate appearing for the respondent. 8. After hearing both sides, we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962 was not legal and proper. Interest of the importer is not a consideration for clearing two consignments and hence, Commissioner (Appeals) erred in giving opportunity to the importer, whose interest was to be ascertained. Penalty under Section 114A ibid. is mandatory in nature. The goods in question were never seized and the importer was offered provisional release which was declined by them, and they preferred appeal. Adjudication order having been passed, it is incumbent on the importer to pay detention/demurrage charges in terms of statute, for which no authority is empowered to meddle with, which did not depend upon the outcome of their appeal. Thus, there was no question of issuing detention certificate for waiver of demurrage and container charges. Commissioner (Appeals) seriously fell in error in not appreciating that the assessee participated in the adjudication proceedings, was heard and only thereafter the Order-in-Original was passed and hence, there was no question of violation of the principles of natural justice. 10. Per contra, Shri Shravan Kochar, Learned Advocate appearing for the respondent, supported the findings of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... psis filed during the hearing. In any case the respondent has categorically admitted in the synopsis filed before us that they had waived issue of Show Cause Notice, but they did participate in the personal hearing before the Adjudicating Authority. They also admit to have claimed before Adjudicating Authority, to only permit re-export of goods in question, which is also on record. The learned Commissioner (Appeals) has extracted the grounds of appeal before him and from those grounds also, we do not see any specific attack made by the respondent as regards violation of principles of natural justice is concerned. If there is violation of the principles of natural justice by the Adjudicating Authority, then only the automatic choice for an appellate authority is to direct the Adjudicating Authority to file remand report based on the contentions urged and the documents furnished before Commissioner (Appeals) specifically inviting comments of Adjudicating Authority to the grounds urged. The respondent-importer waived the Show Cause Notice voluntarily and also participated in the personal hearing. We do not find any basis in the finding of the Commissioner (Appeals) as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that their claim of wrong supply could possibly be an after-thought, which gave birth to the e-mail from supplier! It is thus clear that the Department or at least the Adjudicating Authority never had any chance to address/examine this issue of wrong supply and hence, there was nothing for the Adjudicating Authority to prove or disprove on this, at the time of adjudication. 13. When an irregularity was pointed out, instead of discharging the same, the respondent simply evaded by requesting for re-export. So, if we go by the findings of the Commissioner (Appeals), then it was for the Adjudicating Authority to even explain the irregularity, not just wrong supply . Thus, the burden which was on the respondent was never discharged and hence, there is no question of onus shifting on to the Revenue, to prove, what the learned Commissioner (Appeals) wanted or as desired by the respondent, that there was no wrong supply . 14.1 The requirements under the burden of proof are covered in Chapter VII of the Indian Evidence Act. 14.2 Under the Indian Evidence Act, 1872, Sections 101 to 103 deal with the burden of proof in general, whereas Sections 104 to 106 deal with the situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice is wrong. The burden of proof, therefore, is always there on the noticee initially, which has to be discharged in the first place. 15.2 A cumulative reading of the above provisions leads us to understand that the fact as to the wrong supply was advanced by the importer and hence, the burden of proof is always on the importer to prove the wrong supply to the satisfaction of the authority. 15.3 The documents sought to be relied upon are nothing but e-mails, the authenticity of which were never proved before the Adjudicating Authority and hence, the presumption in terms of Section 114 of the Indian Evidence Act has to be drawn against the importer. The above discussion, in effect, is that the initial burden has to be discharged by the importer. It is only thereafter that the onus would shift to the Revenue and not vice versa. 16.1 Thus, the Commissioner (Appeals) was clearly in error to observe that the Department did not bring on record any material to contradict the contention of wrong supply which, according to us, is not the intention or spirit of law. 16.2 Other than mere contention, we do not find any attempt being made by the importer to furnish any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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