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TMI Blog2007 (12) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ricated to show that the origin of the goods was Sri Lanka. This was done, as per the allegation in the proceedings, in order to get the benefit of exemption from duty under the ISFTA and also in order to avoid the Anti-dumping Duty because if the goods are of Chinese origin the Energy Saving Lamps are liable to discharge Anti-dumping Duty. Proceedings were initiated against various persons involved and the Adjudicating Authority passed the impugned Order. In the impugned order, he held that the 76,500 pieces of Energy Saving Lamps imported by M/s. Surya Light are liable for confiscation under Section 111(d) and 111(m) of the customs Act He imposed a redemption fine of Rs 25 00,000/- on the said goods He rejected the Certificate of Origin issued by the Sri Lankan Department of Commerce and denied the benefit of ISFTA exemption in terms of Notification No 26/2000-Cus dated 1-3-2000 as amended by Notification No. 43/2003-Cus., dated 18-3-2003 to the CFL imported by the appellants. He also held that the impugned goods are liable for levy of Anti-dumping Duty in terms of Notification No 138/2002-Cus dated 10-12-2002 as amended Further, the Adjudicating Authority accepted the value decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Government of India, confirming the verification of the documents issued by the Sri Lankan Department of Commerce. In these circumstances, he said that the denial of the exemption notification in terms of ISFTA to the impugned goods is not in order. He further said that as the goods are of Sri Lankan origin, they are not liable for Anti-dumping Duty. He requested that the impugned order is liable to be set aside in view of these investigations. He also reiterated that the appellants are not liable for any penalty. 6. The learned Departmental Representative Shri R.P. Raheja, informed the Bench that the subject matter of the impugned order was already dealt with by this Tribunal in its Final Order Nos. 537 to 539/2007 dated 1-5-2007 wherein the appellants were (i) Amit Choudhary, Appraiser of Customs, Bangalore (ii) Srikanta Datta, Shipping Assistant of M/s. Chakiat Agencies and (iii) H.V. Nanjundappa, C & F In-charge, M/s. Chakiat Agencies. He said that it has been clearly established in the Final Order that the appellants had fabricated the invoice. They had actually replaced the invoice submitted originally along with the Bill of Entry by another invoice which was fabricated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigating authority should made inquiry with the Sri Lankan manufacturer to ascertain whether the declarations made by it in the certificate of origin are borne out by facts and also to make inquiries with the Sri Lankan authority about the origin of the goods. In this connection, it is pertinent to note that the claim for the preferential treatment under Notification No. 26/2000-Cus. dated 1-3-2000 has been made by the importer and in terms of Rule 4(b) of the Origin Rules, 2000, and it is for the importer making the claim to produce suitable evidence that the imports are eligible for the said preferential treatment. Further, the evidence produced by the importer making the claim is to be to the satisfaction of the Deputy Commissioner of Customs. In this case, the importer has produced only the country of origin certificate evidencing the origin of the goods. However, during the course of investigation, the following facts came to light viz: (a) the invoice No. 12336 dated 20-10-2003 from M/s. Red Sea Trading Company, Hong Kong which had originally been produced at the time of submission of the Bill of entry No. 20244 had indeed been shown 'China' as the country of origin but l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department of Commerce, Sri Lanka that the Country of Origin Certificate No. COISFTA/03/7155 dated 23-10-2003, was issued by the designated authority after having been satisfied about the origin requirements of the relevant rules. Notwithstanding the above, the fact remains that: (a) The goods in question were covered by Invoice No. 12336 dated 20-10-2003 of M/s. Red Sea Trading Co., Hong Kong which indicated 'China' as the country of origin. (b) The order had been placed with M/s. Red Sea Trading Company, Hong Kong. (c) The payment for the goods in question is to be made to M/s. Red Sea Trading Company, Hong Kong and no payment has been or is to be made by M/s. Surya Light to M/s. Ceyenergy Electronic Co. Pvt. Ltd., Sri Lanka and (d) The goods have only been subjected to the activities of labeling and packing in Sri Lanka which activities in terms of the aforesaid Rules are not sufficient for the goods to qualify as goods of Sri Lankan origin. 109. In a similar case detected by the Jodhpur Commissionerate, an importer filed a Bill of Entry for clearance of CFL's claiming benefit of Customs Notification No. 26/2000 dated 1-3-2000. The goods were imported from M/s. Ceyenergy El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious acts of the importer's representative and the staff of the CHA in attempting to mis-declare the country of origin of the impugned goods, I disregard the COO No. CO-ISFTA/03/7155 dated 23-10-2003 and hold that the goods are not eligible for the benefit of exemption under Notification No. 26/2000-Cus dated 1-3-2000." 7.1 In view of the above findings, we find that the appellants are not entitled for the benefit of the said Indo-Sri Lankan Free Trade Agreement and further, as there is evidence to show that the goods originated actually from China, they are also liable to Anti-dumping Duty in terms of the relevant Notification. 7.2 The learned Commissioner has observed on the basis of various statements, which were recorded during the investigation that Shri Umesh Kumar, Proprietor of M/s. Surya Light, had masterminded the entire operation of importing the goods of Chinese origin and getting the same routed through Sri Lanka with the sole intention of evading Anti-dumping Duty of over Rs. 1 crore. He had appointed Jagdish Bajaj of Chennai for the sole purpose of securing the release of the goods from the Customs and dispatching the same to various locations of his choice. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Lanka as the country of origin; fabricated an invoice bearing the number CEC/037/03 of M/s. Ceyenergy Electronics Ltd., Sri Lanka and forged the signature of the authorized representative of the Sri Lankan company and presented such fabricated document to the Department for getting the clearance of the instant goods. Shri Jagdish Bajaj has done all this to ensure that the goods did not suffer anti dumping duty to the tune of Rs. 1 crore as also to ensure that they would unduly get the benefit of exemption under ISFTA. His counsel's arguments that the allegations made in the SCN against Shri Jagdish Bajaj are false is not tenable especially when there is ample documentary evidence to prove that he had received a sample of the Sri Lankan invoice from Shri Umesh Kumar by fax at his Hotel at Bangalore, taken photocopies of the said fax (which fact is corroborated by the statement given by the owner of M/s. Plus Point Systems, a Xerox shop in Gandhinagar), prepared a similar invoice at a local internet parlour and faxed the same to the CHA office showing as though it had been sent from Srilanka. Later he had also torn of the top of the fax copy which had the phone number from where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion given to the Department is true and based on facts. The fact that Shri Jagdish Bajaj has committed the above acts of commission, albeit with the complete knowledge and concurrence of his Proprietor Shri Umesh Kumar does not absolve him of his responsibility of declaring the truth to the Department and ensuring that the goods suffer the appropriate duties. Therefore, Shri Jagdish Bajaj is liable for penalty under Section 112(a) of the Customs Act, 1962." 7.3 The investigations have clearly revealed that the goods are of Chinese origin. Further, the Commissioner has clearly given a finding that in terms of the Origin Rules issued by the Government of India, the goods will not be entitled for the benefit of the exemption under the ISFTA. In view of this, the demand of duty on the impugned item is in order. The appellant is also liable for payment of Anti-Dumping Duty and also the CV Duty. Hence, we confirm the demand of duty to the tune of Rs. 1,18,03,735/- (Rupees One crore, eighteen lakhs, three thousand seven hundred and thirty-five only). The Commissioner has given enough justification for adopting the value of Rs. 200/- per piece for the purpose of Additional Duty of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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