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TMI Blog2013 (10) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... ills of Entry dated 2.1.2010 and 29.12.2009 would constitute three injection moulding machines presented in dis-assembled and partly incomplete condition in order to evade payment of anti-dumping duty imposed under Notification No. 47/2009-Cus. dated 12.5.2009. The imported goods were seized. The original authority held that the goods imported vide Bills of Entry dated 2.1.2010 and 29.12.2009 are one unit each of PS-TECH 1300, PS-TECH 1600 and PS-TECH 2200 injection moulding machines in disassembled and partly incomplete condition which would be classified under Tariff Item No. 8477 10 00 as injection moulding machine and rejected classification of the goods under Tariff Item No. 8477 90 00 of the Customs Tariff Act claimed by the respondent. He also ordered for payment of anti-dumping duty of Rs.49,76,553/- (@ 223% of CIF value as per Notification No.47/2009-Cus. dated 12.5.2009) under Section 28(1) of the Customs Act, 1962 along with interest and also confiscated the seized goods and allowed redemption of the goods on payment of fine of Rs.10 lakhs. Penalty of Rs.49,76,553/- and Rs.1,00,000/- were imposed on the respondent No. 1 company under Section 114A and 114AA of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; (v) Thomson Consumer Electronics India Pvt. Ltd. Vs. Commissioner of Customs - 2004 (164) ELT 292 4. He submits that the Commissioner (Appeals) while passing the order had totally failed to examine the facts of the case in proper manner. Hence, the order of the adjudicating authority may be upheld and the order of the Commissioner (Appeals) be set aside. The learned AR submitted a written submission which was kept on record. 5. The learned counsel on behalf of the respondents reiterates the findings of the Commissioner (Appeals). He submits that the original authority passed the order in violation of principles of natural justice insofar as he has merely reproduced the allegations and facts of the show-cause notice in the adjudication order and ignored their submission. It is submitted that the adjudicating authority proceeded on the basis of Notification No. 47/2009-Cus. dated 12.5.2009, which expired on 12.11.2009, much before the goods were imported. It is submitted that the final anti-dumping duty was imposed by Notification No. 39/2010-Cus. dated 23.3.2010 which is covered the present case and in this Notification anti-dumping duty was imposed @ 174%. It is also co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... * 3 sets of safety doors of injection machine (PS-TECH 1300, PS-TECH 1600 AND PS-TECH 2200) * 3 sets of clamping parts, for injection machine * 3 sets of injection bases, for injection machine 7.2 It was found that just three days before the respondent filed another Bill of Entry dated 29.12.2009 supplied by another supplier M/s. Ningbo Beston Mechanical Technology Co., China vide Invoice No.BST9002-TT1210 dated 8.12.2009 and the goods were found described in the packing list as under:- * 3 sets of sheet metal parts for injection machine (PS-TECH 1300, PS-TECH 1600 AND PS-TECH 2200) * 3 sets of hydraulic parts for injection moulding machine (PS-TECH 1300, PS-TECH 1600 AND PS-TECH 2200) * 3 sets of base parts for injection moulding machine (PS-TECH 1300, PS-TECH 1600 AND PS-TECH 2200) * 3 sets of square base parts. 7.3 The respondents by letter dated 5.1.2010 informed that these parts would be used in the manufacture of plastic injection moulding machines and they would import other spare parts such as microprocessor from Keba, Austria and servo motor, drive and pump from Bosch Rexroth, Germany an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection moulding machines of model numbers PS-TECH 1300, PS-TECH 1600 and PS-TECH 2200 from M/s. Ningo Beston Mechanical Technology Co. Ltd., China. The case of the Revenue on the basis of e-mail communications, examination of the parts of machines along with statements, the bifurcation of imports is for the purpose of evading payment of anti-dumping duty. The Hon'ble Supreme Court in the case of Phoenix International (supra) as relied upon by the learned AR observed that when there is an allegation of subterfuge, the court has to examine the circumstances surrounding the import to ascertain whether the importer had entered into fictitious arrangement to evade customs duty. The intention behind the act of importation is to be probed. In the present case before us the Revenue made out a case from the various evidences including the e-mail communication that the respondent imported the parts of injection moulding machines by two Bills of Entry for evasion of anti-dumping duty. 9. On perusal of the impugned order, we find that the Commissioner (Appeals) has not examined the factual aspects of the case. We agree with the submission of the learned AR that the Commissioner (Appeals) mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not considered the submission of the respondent on merit. 12. It is settled principles of law that while passing the order the authority must record the reasons, links between the materials on which certain conclusion are based and the actual conclusion. Recording of the reasons without considering the submissions of the parties is vague. Reasons must be adequate and proper, it must be sufficient, clear, explicit and based on the materials on records. In the present case, both the authorities below did not consider the materials on record insofar as the allegations in the show-cause notice and the submissions of the importer. Thus, in our considered view both the orders cannot be sustained. 13. In view of the above discussions, we set aside both the orders and remand the matter back to the original authority to decide the matter afresh after considering the submissions of the respondent and in accordance with law. The adjudicating authority would consider all the submissions raised by the respondent before us. 14. As the goods are still lying with the Department, we direct the original authority to decide the matter as expeditiously as possible within a period of three months f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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