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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 ..... o the Import prices, to end users - Thirdly, there was no proof of remittance of any additional amount by the importer to the supplier abroad - no reason to interfere with the order passed by the adjudicating authority and the same was upheld – Decided against Revenue. - C/682, 685 and 691/2009 - C/320-322/2011 (PB) - Dated:- 14-7-2011 - Ms. Archana Wadhwa and Shri Mathew John, JJ. Shri Sonal Bajaj, SDR, for the Appellant. Shri K.K. Anand with Prabhat Kumar, Advocates, for the Respondent. ORDER Revenue made a case against three importers namely, (i) Vee Kay Polycoats Ltd., (ii) M/s. Sushi Chem and Plastic Industries and (iii) Global Associates, regarding undervaluation of imports of certain plasticizers imported from M/s. LG Chem, Korea, during the period 2003-04. The Show Cause Notice issued, alleging undervaluation and demanding duty to the tune of Rs. 62,54,899/-, Rs. 1,10,99,357/-, Rs. 1,66,82,521/- respectively from the three importers above said, along with appropriate interest and penalties, was adjudicated by the Commissioner who dropped the proceedings initiated by the SCN against the importers and the concerned CHAs. Aggrieved by the order the Revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting observations in paras 34 and 35 excerpts of which are reproduced below : It will be highly inappropriate to say that in commercial parlance a chemical product will have only one quality. It will amount to saying that water taken from a pond, sea, river, rain Bisleri Bottle etc will always be of the highest quality When there is a wide variations in the specifications of a commercial product it is expected that there will be several grades. For example all the categories of cotton fabrics will not fetch the same price because it depends upon so many factors, like cotton staple fibre length, spinning of yarn, reed-pick of the fabric etc. Similarly all the models of the same car made by a car manufacturer e.g. Maruti Suzuki will not be having the same commercial value. In the instant case of DEHP (DOP) there could be different commercial grades due to variations in colour, specific gravity, Acid Value, Ester Value, Refractive Index, Acid Value after heating etc. Therefore, the submissions of the manufacturer M/s. LG Chem Ltd., Korea, that inferior varieties of these plasticizers are sold as DEHP at lower price makes sense. 7. He gave his final conclusion as detailed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y basis and it is not the case of the Department that the impugned goods are DnOP. It is not disputed that M/s. LG Chem and M/s. LG International are in the business of manufacture and supply of DOP. Invoice Nos. 20014439 dated 27-12-2002, 20030163 dated 14-7-2003, 20042592 dated 5-12-2003 and 20053921 dated 27-3-2004, all issued by LG International, Korea contains the description which is as follows : PLASTICIZER, DI-OCTYL-PHTHALATE (DOP) . The invoices issued are in favour of M/s. Veekay Polycoats Ltd. which are relied upon by the Department. The affidavit of the Plant Manager reads, All over the world, as an accepted commercial practice, the trade understands DEHP as DOP and market also understands DEHP as DOP. Certificate of analysis filed along with the invoices of impugned DEHP contains the description of commodity as DOP. 20.3 In their various statements the representatives of the liaison office of M/s. LG Chem in India have accepted that they were not aware of DEHP being manufactured by M/s. LG Chem and that they never undertook any market survey for the product. Neither is there any product catalogue of M/s. LG Chem mentioning the product DEHP. 20.4 M/s. LG Chem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is never the case of the Department that M/s. LG Chem manufacture DnOP. Therefore, to make an attempt to compare DEHP with DnOP is fallacious and that is not the case of the Department as well. While DEHP is chemically described in the invoices as Di Ethyl Hexyl Phthalate and DOP as Di-Octyl Phthalate, DEHP (CAS No. 117-81-7) is also known as Di-octyl Phthalate, (DOP). It is the phthalate ester of the alcohol 2-ethyl hexanol, (Source : DEHP information centre). The contentions of the importers to the contrary are at best an after-thought and need not be accepted on their face value. 8. The ld. DR arguing in support of the Appeal reiterates the grounds in the Appeal Memorandum and the main thrust is that large volume of technical literature produced show that the two products are the same. Even the statement of Shri C.D. Anand, Executive Secretary of Indian Plastic Manufacturers Association referred to in para 4 above show that the two names are synonymous. According to him the only reason for introducing the new name, DEHP, was to declare a lower price for the product than the price they were declaring for DOP in the past. He argues that since there were imports of identical go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by many companies, it has acquired many names and acronyms, including BEHP and di-2-ethyl hexyl phthalate 12. The literature on this site also shows these to be different isomers of the same substance. When such technical literature exists it is not possible to brush aside the contention of the manufacturer who produced the goods and the importer who imported the goods stating that the products that were imported under the two names were different in the matter of quality and price. It is patently wrong to rely on evidence of Shri Viswanathan Sathapan, indentor of LG Chem, who states that he had never dealt with DEHP to prove the case ignoring the evidences of Shri. Vinod Kumar Garg, Director of M/s. V. K. Polycoats, one of the importers, given during the investigation stage itself explaining that L.G. Chem was manufacturing DOP DEHP and supplying it to them through M/s. L.G. International; that DOP was Di-Octyl Phthalate and DEHP was Di-Ethyl-Hexyl-Phthalate; that DOP and DEHP were internationally accepted as different products; that DEHP was more toxic and had a different molecular structure; that DOP and DEHP were plasticizers used in the same plants but used differentl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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