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TMI Blog2025 (5) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the Commissioner of Customs, Chennai-II, regarding the import of PVC flex banners from China via Malaysia allegedly to evade anti-dumping duty (ADD). Brief facts of the case are that based on specific intelligence that various Indian importers have been importing PVC flex banners of Chinese origin through Malaysia with the help of one Shri Manoj Arjun Gore of M/s. Topaz Plastic Industries (M) SDN BHD, Malaysia and have mis-declared the impugned goods as being of Malaysian origin to evade payment of ADD, the Chennai Zonal Unit of DRI initiated an investigation into these imports. M/s. Tech Zone Global Trading Company, was one such Indian importer. As per the IEC profile Shri Gyanesh Kumar and Rajesh Surana were the Directors of the importer-company. After due process of law, the Ld. Adjudicating Authority confirmed the proposals in the Show Cause Notices and demanded duty, along with interest and imposed penalties. 3. We have heard Shri S. Murugappan, learned counsel for the appellant and Shri Anoop Singh, Ld. Authorized Representative for the respondent-department. 3.1 The learned counsel Shri S. Murugappan submitted that the main case of the respondent is that same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 28(4) of the Customs Act 1962, was possible. He hence prayed that the impugned order may be upheld and the appeal rejected. 4. We have heard both sides and perused the records. We find that the dispute relates to the following issues; A) Whether the impugned goods loaded in containers at China have come to India merely with change of BL at Malaysia and therefore, these goods are not of Malaysian Origin. B) Whether the COO certificate issued under Free Trade Agreement by another sovereign country needs to be honored and if there are doubts, then, procedure set out in the relevant Rules need to be followed. C) Whether the transaction value has been mis-declared along with mis-declaration of actual weight of the goods imported. D) Who is the actual importer of the goods and whether goods are liable to confiscation and the appellants are liable to penalty and whether the extended period is invokable. We shall examine the issues sequentially. 5. Whether the impugned goods loaded in containers at China have come to India merely with change of BL at Malaysia and therefore, these goods are not of Malaysian Origin. 5.1 We find that the DRI investigation pertains to a large n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd., the container nos. and the seal nos. were found to be identical for two legs of the transport. Apart from this bland statement there is no attempt in the impugned order to corroborate the various documents statedly recovered with the impugned BE's. None of the charts in the annexure to the SCN attempt to link the container numbers / seal numbers during both legs of transportation with the respective BL and BE. 5.2 The Counsel for the appellant has taken us through the documents and the above averments are found to be correct. The impugned order has not been able to demonstrate a linked chain of events that clearly establishes the connection between the documents mentioned and the impugned BE's, for two legs of the same journey of the containers i.e. from China to Malayasia and then from Malayasia to India. We find that under the Indian Bills of Lading Act, 1956, every consignee of goods, named in a Bill of Lading and every endorsee of a Bill of Lading, is vested with absolute right over the goods. Hence if the relevant BL's were properly collected, analysed and linked to the respective BE's it could have served as good evidence regarding the ownership of the goods and its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant. We have found that the allegation of shipment of the goods being from China has not been proved. The appellant has stated that as per the COO certificate the goods were consigned from M/s Topaz Plastic Industries and M/s Malaya Winds Plastics both of whom are manufacturers of PVC flex banners in Malayasia. Proof of the same was also submitted in the reply to SCN. Payments were also made through banking channels to the said Co's as evidenced from the bank statements and mentioned in their reply to SCN. We find that the regarding the alleged payments for shipments, no verification of available bank statements have been discussed neither have records and details of direct payment to Chinese manufacturers been mentioned. The findings in the impugned order hence contains conclusions made without relevant factual evidence being discussed and hence do not succeed in establishing the Chinese origin of the goods. 6. Whether the COO certificate issued under Free Trade Agreement by another sovereign country needs to be honored and if there are doubts, then, procedure set out in the relevant Rules need to be followed. 6.1 The impugned order states that, "The importers have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e most universal, namely that the best evidence, the nature of the case will admit shall be produced. 'So long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it.' Although a strict compliance of the Evidence Act will not apply to a quasi-judicial proceedings, on the scale for evaluation of evidence, a certificate issued by an authorised entity carries more value than an allegation in a third-party statement or of documents that are not correlated to the BE's. 6.3 Revenue has relied on the judgment of the Hon'ble High Court of Gujrat in Trafigura India Private Ltd Vs UOI [2023 (12) TMI 196 - GUJARAT HIGH COURT] to support their stand. It has been stated that the substantive provisions of the Customs Act like Section 148 and Section 28 will have dominion over the procedural aspects of the Rules of Origin notified by Rules and Notifications. We find from the facts of the said case that duty exemption was availed by the petitioners by producing the COO certificate where in the Regional Value Content (RVC) was misrepresented. The RVC of the goods was prescribed to be about 35% as per the condition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a comprehensive database maintained by the Customs Department, which has import data captured from the BE at all Customs stations on a daily basis. It provides real-time access to data on imported goods, allowing for comparisons with contemporaneous import prices and current international prices. While this data by itself would not be determinative of the transaction value, it would have shown whether the values declared were commensurate with contemporaneous import prices as well as current international prices of identical and similar goods, giving room to doubt the value declared. The impugned order states that the actual price of the impugned PVC flex banner has always been negotiated and paid on SQM basis. We hence examine the discussions and findings regarding the mis-declaration in weight of the impugned goods. 7.3 The impugned order states that during investigation into the goods under import, parallel / actual invoices raised by the Chinese suppliers were recovered from e-mail of Shri. Anil Bhandari and from the hard discs from their residential premises, for which payments have been made to Chinese suppliers by them. It was also found that similar modus operandi was ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared and the impugned order is hence not sustainable. 7.6 We find that the weighment process does not inspire confidence in its accuracy and extrapolating it to a larger number of cleared containers is likely to magnify the error. Hence the benefit of doubt must be given to the appellant and the weighment results rejected. 7.7 As regards the value of the goods imported by Shri. Rajesh Surana allegedly under various IECs, the impugned order found the goods comparable to the imports made by the Bhandari Brothers whose data was found in the e-mail of Shri. Anil Bhandari and from the hard discs taken from their residential premises. The order hence went on to adopt and re-determine the declared value for goods imported by Shri. Rajesh Surana allegedly in the name of other IECs as per Rule 5 of the Customs Valuation Rules, 2007, as detailed in work Sheets I to X of the Show Cause Notice. There was no detailed discussion in the impugned order showing the description, quantity and quality of the goods as imported by the Bhandari Brothers and those of the appellants. Bland statements and generalities alone would not provide the specific detail required to compare the goods. The statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 8.3 We find that the said averments have not been discredited by any evidence other than the statements of those allegedly involved in letting out their IEC to Tech Zone, while the entire documentation was in the name of the IEC holders. Evidences, of ownership of the goods post-importation and its disposal have not been examined. The whole discussion hence suffers from the same weakness as discussed above. Hence the impugned goods were not liable to confiscation neither were the appellants liable to penalty. The question of invoking the extended period to demand duty hence does not survive. 9. As regards the individual appellants the following averments have been made; i) Rajesh Surana has stated that there is no documentary evidence showing any wrong committed by him and hence no penalty can be imposed on him. Further he is a partner in Tech Global and hence when a penalty is sought to be imposed on the partnership firm a separate penalty cannot be imposed on him. Tech Global has independently filed its reply denying any wrong doing, hence further action against him may be dropped. ii) M/s M.M. Enterprises has stated that the case is based on the statement given by Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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