2024 (12) TMI 1157 - AT - Customs

Levy of anti-dumping duty on 46.646 MT bearing Made in Japan marking - exemption under N/N. 14/2010-Cus dated 20.02.2010 - Department is aggrieved by that portion of the order whereby 19 pallets out of 25 which were having no country of origin mentioned on them and which were imported from Dubai were not subjected to the Anti Dumping duty which was mainly meant for Cold Stainless-Steel Sheet if they originated from China and Taiwan. HELD THAT - Ihe instant case Commissioner while writing order has duly considered that there was a mis-declaration involved and enhance the value and subjected the party to the penalty for importation of mis-declared goods, including the duty and penalty thereon. Department is of the view that once misdeclaration is found then it was for the party to prove that 19 pallets were not of Chinese/Taiwanese origin even when the goods have been imported from UAE. Department has also proposed that once something is alleged in show cause notice it is for the party to prove otherwise. In relation, however, to 19 pallets which were having no marking of country of origin, the department is of the view that they are of Non Taiwanese origin needed to be proved by the party rather than they being asked to prove that such pallets were of Taiwanese origin. The assertion that once department has alleged something in show cause notice then it is for party to prove otherwise is erroneous as a general rule. In the instant case, there are 3 pallets each of Japanese origin (i.e. non ADD country) and 3 pallets of Chinese /Taiwanese origin (subjected to ADD country), therefore, without bringing in presumption, the remaining 19 cannot be treated as of Taiwanese origin. This is more so, as the consignment has emanated from Dubai which is a 3rd party country. Again department cannot extend the consequences of initial misdeclaration for all purposes including to the Rules of evidence, even when the statute does not provide for it. The scrutiny of the statute does not afford any such scope in favour of the department beyond the listed consequences of extended period of limitation and re-looking at the valuation. The departmental appeal is therefore devoid of merits and order of the Commissioner in the instant case deserves to be upheld. Departmental appeal is rejected.

Summary

Issues:
1. Demand of anti-dumping duty on Stainless-Steel Melting Scrap.
2. Determination of country of origin for anti-dumping duty purposes.
3. Mis-declaration of goods and burden of proof on the importer.

Analysis:
1. The case involved the department appealing against the dropping of a demand for anti-dumping duty on Stainless-Steel Melting Scrap. The Respondent had imported the goods from an overseas supplier, but upon examination, it was found that certain pallets contained stainless-steel sheets instead of scrap. A Show Cause Notice was issued, demanding anti-dumping duty, which the Commissioner partially confirmed. The department contested the dropping of the demand on certain pallets, arguing they should be treated as Taiwanese origin.

2. The key issue was the determination of the country of origin for anti-dumping duty purposes. The Commissioner found that only specific pallets marked "Made in Taiwan" should be subjected to anti-dumping duty, while others lacking such markings should not. The department argued that all pallets without origin markings should be presumed Taiwanese origin, placing the burden on the importer to prove otherwise. The Respondent countered by citing various countries and companies manufacturing stainless steel sheets, challenging the department's presumption.

3. The mis-declaration of goods and the burden of proof on the importer were central to the case. The Respondent maintained that they had ordered Stainless-Steel Melting Scrap of UAE origin, not stainless-steel sheets. They argued that the absence of origin markings did not justify presuming Taiwanese origin. The department contended that mis-declaration shifted the burden to the importer to prove the disputed pallets' origin. However, the Tribunal held that the department failed to prove Taiwanese origin for the pallets without markings, emphasizing the principle that the burden of proof lies with the party making the assertion.

In conclusion, the Tribunal rejected the department's appeal, upholding the Commissioner's order. The judgment clarified that mis-declaration did not automatically shift the burden of proof to the importer regarding the country of origin. The decision underscored the importance of evidence and the burden of proof in customs matters, emphasizing that the party making an assertion must substantiate it, especially in cases involving anti-dumping duties and origin determinations.