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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 ..... itiated against the appellant on the ground that they are not entitled for the benefit of exemption Notification under the Indo-Sri Lanka Free Trade Agreement (ISFTA in short). It was revealed during the course of investigation that initially, the Bill of Entry was filed along with an Invoice from Hong Kong which indicated that the Country of Origin of the goods was China. But later, the original invoice was replaced with a fake invoice which was fabricated 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 Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities. In other words, he emphasized that the country of origin of the impugned goods is Sri Lanka in terms of the Country of Origin Certificate and he said that this is very clear from the investigation carried out by the authorities. Particularly, he invited our attention to the letter from the Department of Commerce, Ministry of Commerce and Consumer Affairs, Sri Lanka, addressed to Dr. M. Subramanyam, Joint Director, Directorate of Revenue intelligence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 19/2000-Cus. (N.T.) are not fulfilled. In view of these findings, he held that the goods are not eligible for benefit of exemption under Notification 26/2000-Cus., dated 1-3-2000. It would be worthwhile to reproduce paras 108 and 109 of the impugned order, which explains clearly as to why the appellants are not entitled for the benefit of the Indo-Sri Lankan Free Trade Agreement. "108. It has been further argued by the importer's Advocate that the investigating 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements of-the Proprietor of the unit, his representative and the CHA, which render the impugned goods ineligible for the preferential treatment, it is for the importer (and not for the investigating authority) to substantiate his claim for the said preferential treatment. In any case, the department had caused verification of the COO issued by the Sri Lankan authorities and it was confirmed by the Director General of Commerce, Ministry of Commerce and Consumer Affairs, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of Rule 7(d) of the Origin Rules is also not fulfilled as only assembling, labeling and packing processes are being carried out in Sri Lanka. Therefore, I find that the COO certificate issued as per ISFTA was issued by the Sri Lankan authorities based on wrong information as the conditions of Rule 7(b) and 7(d) of the Origin Rules, 2000 notified vide Customs Notification No. 19/2000-Cus. (N.T.) are not fulfilled. Taking all these facts into consideration and also the various 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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide intention, he has in connivance with the CHA staff tampered with the original invoice No. 12336 of M/s. Red Sea Trading Co., Hong Kong and erased the word 'China' appearing in the origin column of the said invoice and later destroyed the original invoice and replaced the tampered documents in the B/E No. 20244; had removed the original GATT declaration (indicating 'China' as the country of origin) after the assessment was completed and replaced it with another declaration indicating 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mention here that Shri Jagdish Bajaj in his various statements given under section 108 of the Customs Act had always stood by his earlier statements and at no point of time had he retracted any statement. From the various evidence and submissions made by Shri Jagdish Bajaj, I find that his appointment as representative of M/s. Surya Light was with the explicit purpose of getting the imported consignments cleared from Customs and hence he is solely responsible for ensuring that the information 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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