2024 (8) TMI 1469 - AT - Customs

Demand of differential duty - Anti-Dumping duty rates for different manufacturers and exporters - Scope of Notification No. 32/2019-Cus. (ADD) - Anti-Dumping duty at variable rates on different class of manufacturer, with those producers which are at Serial No 1 entitled to lower Anti Dumping Duty, while others being subjected to higher rate of duty Department is of the view that the exporter claimed that is M/s. Xingzian Zhongtai Chemical Company Ltd. (hereinafter called Chemical Company ) is the manufacturer and therefore, required to be subjected to the higher rate of Anti Dumping Duty as per the same notification i.e. Notification No. 32/2019-Cus. (ADD) - appellant have contested this claim on the basis that Chemical Company was merely the exporter on record and even numbers of documents exist indicating that they were not manufacturer and therefore, the lower rate of Anti Duping Duty was correctly sought - HELD THAT - We find that the commercial invoice issued for the consignment clearly mentions manufacturer name as that of Alkali Company. Even packing list has the name of Alkali Co. Ltd as the manufacturer. We also find that the certificate of origin issued by China Council for the Promotion of International Trade, which in competent agency, also indicates the name of the Alkali Company as the manufacturer of the impugned goods and origin of the goods being that of China. Transporting companies i.e. transport shipping (China Corporation Ltd.) also mentions Alkali Company as the manufacturer. Same is the case with transit insurance issued in this regard. As in view of overwhelming documentary evidence which is otherwise available, Department has not been able to establish that the Chemical Company was the manufacturer. Department cannot on the basis of Company s name appearing on the sacks, consider that all other documents are falsified, even when investigation has not brought on record anything to this effect. There is no testimonial incriminating evidence on record to indicate that there was breach of law committed by the Chemical Company while importing such goods to India. The clearance was got done by waiving show cause notice but by paying duty under protest for the sake of early clearance. Therefore, all the documentary evidence produced by the appellant remains uncontroverted and cannot be ousted by mere mention of name on sacks, which do not even indicate that Chemical Company was manufacturer. Commissioner (Appeals) in his findings has done away with confiscation of goods and imposing of fine under Section 125, and penalty under Section 112 (of the Customs Act, 1962), on the cogent basis that the Bill of Entry was filed on the basis of documents received. Therefore, on the basis of available documents, the goods have been held, to be non-offending goods. Despite the same document, differential duty has been demanded, which is incorrect approach in law, as the credence to the documentary evidence cannot be ignored for duty only, when found worthy of consideration for holding goods as non-offending. Thus, since documentary evidence in any case gets precedence over assumption/suspicion emanating from the packing specially till it is controverted, we are inclined to accept the above documentary evidence including certificate of origin as adequate evidence to accept that Alkali Company were the producers in the present instance and in the fact of the matter brought on record. Decided against revenue.

Summary

Issues:
Interpretation of Notification No. 32/2019-Cus. (ADD) regarding Anti-Dumping duty rates for different manufacturers and exporters.

Analysis:
The case involved a dispute regarding the imposition of Anti-Dumping duty at variable rates on goods manufactured by different companies as per Notification No. 32/2019-Cus. (ADD). The appellant claimed that the goods were manufactured by "Alkali Company," entitling them to a lower duty rate, while the department argued that the goods were manufactured by "Chemical Company," justifying a higher duty rate. The department based its claim on the name "Chemical Company" found on the imported sacks. However, the appellant provided substantial evidence to support their claim, including commercial invoices, packing lists, certificates of origin, and other documents, all indicating "Alkali Company" as the manufacturer.

The Tribunal considered the evidence presented by both parties, emphasizing the documentary evidence provided by the appellant, which consistently identified "Alkali Company" as the manufacturer. The Tribunal noted that the certificate produced by the appellant, stating that "Alkali Company" was the manufacturing unit for the goods in question, was unsigned but supported by other documentary evidence. The Tribunal highlighted that the department failed to establish that "Chemical Company" was the actual manufacturer, relying solely on the name on the sacks without concrete evidence of falsification or legal breach.

Moreover, the Tribunal observed that the Commissioner (Appeals) had previously ruled in favor of the appellant in a similar matter, recognizing "Alkali Company" as the manufacturer. The Tribunal emphasized that documentary evidence should take precedence over assumptions or suspicions, especially when the evidence remains uncontroverted. Therefore, the Tribunal accepted the documentary evidence provided by the appellant as sufficient proof that "Alkali Company" was indeed the producer of the goods in question.

Consequently, the Tribunal allowed the appeals of the party represented by the appellant, rejecting the department's appeal and providing consequential relief. The judgment highlighted the importance of documentary evidence in determining the manufacturer for Anti-Dumping duty purposes, emphasizing the need for concrete proof over mere assumptions or assertions based on limited information.