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TMI Blog2013 (8) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Di-Octyl Phthalate (DOP) for a few years up to about July 2003. From July-August, 2003 they started importing goods declared as Di-2-Ethyl Hexyle Phthalate (DEHP) at a lower price than that of DOP. The case of the Revenue is that both DOP and DEHP are the same compounds and they started importing the goods adopting a new name with the purpose of undervaluing the goods with an intention to evade Customs duty. 3. The main evidence relied upon by Revenue are detailed in para 21 of the SCN which is technical literature in Journals, Reference Books, Chemical Dictionary and information on internet to the effect that the names DOP and DEHP are synonymous names. Some of these are,- (i) Study prepared by ECOBILAN, Member company of Price Water House Coopers, France for the European Council of plasticizers and Intermediates (ECPI) (ii) The Condensed Chemical Dictionary, Tenth Edition, Revised by Gesser G. Hausley (iii) The handbook of Polyvinyl Chloride Formulating edited by Edward J. Wickson 1993 edition (iv) MSDS (Material Safety Data Sheet) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lasticizers are sold as DEHP at lower price makes sense." 7. He gave his final conclusion as detailed in para 37 of the order which is reproduced below : "The assessed Bills of entry have not been appealed against by the Customs Commissionerates as both DOP and DEHP descriptions of a product were being assessed in the Custom house at the same time and it will not be appropriate to say that only the importers should give all the synonyms of a product in the Bill of Entry. Even the assessing officer also have the knowledge as to what are the isomers/synonyms of a chemical being imported. It is possible that the assessing officer had this knowledge and that is why no objection was raised while assessing the bills of entry as both DOP & DEHP represent the same chemical but could have different grades and were being imported at the same time in same custom house. Showing a different CTH in the bill of entry is not a mis-declaration. It is the duty of the assessing officer and not the importer to correctly classify a product. Secondly, when both the terminology DOP & DEHP have been held to be the same chemical there is no mis-declaration on the part of the importer because when the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct. Neither is there any product catalogue of M/s. LG Chem mentioning the product DEHP. 20.4 M/s. LG Chem and M/s. LG International remain the same entity, is irrefutably proved by documentary evidence. By indulging in undervaluation they stood to gain. Therefore, it is not surprising that they both actively and tacitly allowed the switch in nomenclature. 20.5 Of the two synonyms, that is DOP and DEHP, the latter happens to be more commonly used internationally. Since the product itself is very widely used in the medical industries, certain health issues cropped up, which led to extensive scrutiny of the product from safety angle. Though nothing conclusively has been proved there remains an uncertainty regarding its potential health hazards. This has prompted several European countries, along with USA, to ban the import of DEHP by a certain date. Naturally, trading activities of DEHP with the western countries have decreased, giving an opportunity to the unscrupulous elements in India to exploit the situation where the product has been known as DOP and not DEHP. They saw an opportunity to change the nomenclature of the product and undervalue it in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer price for the product than the price they were declaring for DOP in the past. He argues that since there were imports of identical goods by a different name, i.e., DOP, at about the same time the values declared for DOP should be adopted for assessing duty on all impugned consignments of goods declared as DEHP and the duty demanded as per the SCN should be confirmed by setting aside the order of the Commissioner. 9. The ld. Counsel for Respondents produced a copy of Report prepared by NTP-CERHR Expert Panel Report on DI n OCTYL PHTHALATE under the National Toxicology Program of US Department of Health and Human Services during October 2000 downloaded from http://cerhr.niehs.nih.gov/phthalates/DnOP-final-inprog.pdf. This report, while discussing toxic effects of DnOP, mentions that when the isomer of this compound is not specified it is referred to also as DOP. The report says "There is sometimes confusion reporting data for DnOP because DEHP is often referred to in the literature as Dioctyl Phthalate (DOP). It further discusses "Dioctyl Phthalate (DOP, isomer not specified) excluding DEHP". The contention of the counsel is that though the chemical formula for the two substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more toxic and had a different molecular structure; that DOP and DEHP were plasticizers used in the same plants but used differently by manufacturers of PVC products depending on the quality of the final product cleared, the customers were also the same; that for superior quality manufacture of Shoes/Cables/PVC Sheeting DOP was used and for lower quality DEHP was used; that DOP was more widely used in India" etc. This statement stand supported by Affidavit of the Production Manager of the manufacturer. Since veracity of these contentions is not verified by investigations we do not find merit in the argument of Revenue that the Commissioner, while adjudicating the SCN, erred in studying the literature on DnOP and then concluding that DOP and DEHP were different products. 13. The evidences produced by Revenue can at best create a doubt but cannot prove a case of undervaluation because of three main reasons. Firstly, the case is made about quality of goods which are already cleared and there are no samples of goods available to prove or disprove the rival submissions about quality. Secondly, no investigations are carried out about the claim that the goods in question were in fact so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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