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TMI Blog2023 (4) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... s were produced in China. That is the test which the impugned order must overcome to exclude setting aside of the anti-dumping duty devolving on the importer. That the import is covered by invoice of M/s Reva Technologies, Dubai indicating the goods to be of Malaysian origin, backed by certification to that effect issued by Dubai Chamber of Commerce, is on record. That the bill of lading covers the shipment of the impugned goods from Singapore is also on record - the incriminating pamphlet was not in the intercepted consignment and that, containing, as it does, the name of an allegedly non-existent entity in Malaysia, its evidentiary value for purpose intended by the adjudicating authority is suspect. Local traders can hardly be accepted as authoritative sources for establishing origin and the transaction allegedly entered into between these traders and the importer may have relevance for proceedings under some other statute without any bearing on conformity with the conditions for imposition of the definitive anti-dumping duty. The market price in India shall not be the basis for determination of value under rule 9 of Customs Valuation (Determination of Value of Imported Good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8th June 2013] of Commissioner of Customs (General), Mumbai in relation to import of measuring tapes against eight bills of entry filed between November 2007 and December 2009 which, if sourced from China, would have been leviable to duties in notification no. 147/03-Cus dated 7th October 2003, 50/08-Cus dated 21st April 2008 and 49/09- Cus dated 15th May 2009 for the relevant period in time. 4. The case of customs authorities, charging deliberate misdeclaration of origin as Malaysia with intent to evade the antidumping duty (ADD) , alludes to the complexity of the impugned transaction itself as cause for suspicion and to the sufficiency of discarding of certificate that, even if originating with the competent authority, does not purport to go beyond self-declaration. Implicit in this apple of Sodom hypothesis leading upto the show cause notice is the acknowledgement that while, to all external appearances, the documentation submitted with the bills of entry may, in themselves, be rosy , investigation has exposed the unpalatably bitter mesocarp. 5. It would appear that investigations, cofounded by the bouncing back of email query from the server address of the purport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely for book adjustment. Based on investigations that was held to suffice for rejection of value declared in the bills of entry and from lack of wherewithal for recourse to rule 4, rule 5, rule 7, rule 8, rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 was resorted to in conjunction with report of market inquiry of 7th January 2010, 11th April 2011 and 13th April 2011; thus, declared value of ₹ 67,12,897.78, in these eight bills of entry, was enhanced to ₹ 4,84,19,531 with consequent differential duty of ₹ 1,00,45,588 at the applicable rate of duty in addition to antidumping duty (ADD) of ₹ 3,80,17,585 by application of US$ 4.19 per kg on steel tapes and US$ 4.10 per kg on fiber glass tapes as per notification no. 147/03- Cus dated 7th October 2003 that was to continue, under the authority of successor notifications, after review till 14th May 2015. The recovery of this determination under section 28 of Customs Act, 1962, along with applicable interest under section 28AB of Customs Act, 1962, confiscation of imported goods under section 111(d) and section 111(m) of Customs Act, 1962 while allowing the goods under seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their part. For the overseas supplier, reliance was placed on the decision of the Tribunal in Seville Products Ltd v. Commissioner of Customs, Ludhiana [2021 (378) ELT 291 (Tri-Chan)], to question jurisdiction to impose penalty. 8. In support of his contention that an inappropriately conducted market survey cannot be the basis for resort to rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for discarding declared value, Learned Counsel placed reliance on the decisions of the Tribunal in Amarjeet Enterprises v. Commissioner of Customs (Import), Mumbai [2019 (370) ELT 1569 (Tri-Mumbai)], which attained finality owing to dismissal of appeal of Revenue by the Hon ble Supreme Court, and in Sanjay Kumar Agarwal v. Commissioner of Customs, Mumbai [2016 (331) ELT 81 (Tri-Mumbai)]. On the issue of impropriety of revisiting completed assessments as well as charging of suppression, Learned Counsel placed before us the decision of the Tribunal in Tele Brands (India) Pvt Ltd v. Commissioner of Customs (Import), Mumbai [2016 (336) ELT 97 (Tri-Mumbai)] and in Commissioner of Customs, Amritsar v. Jyoti Industries Ltd [2005 (188) ELT 88 (Tri-Del)]. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nating in recovery of differential duty and anti-dumping duty on measuring tapes made of steel and measuring tapes made of fiber glass from the principal noticee, has had a curious passage commencing, as it did, with alert issued by Directorate General of Valuation on the steep under-invoicing of such goods from several countries including Malaysia, on which, as yet, anti-dumping duty was not contemplated then before going on to render the finding that the impugned goods did not originate in Malaysia. It is rather complex as the empowerment to impose definitive anti-dumping duty under SECTION 9A . Anti- dumping duty on dumped articles. (1) Where any article is exported by an exporter or producer from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation. For the purposes of this section, - - (a) margin of dumping , in relation to an art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and combination of country of manufacture/export/ manufacturer/ supplier; the essential difference between assessment to basic customs duty and subjecting goods to anti-dumping duty is that, in the former the presumption of transaction value may be disrupted while, in the latter, is the unvarying certainty of the declared value being the transaction value. Consequently, and in the light of this special deviation from the norms of assessment, anti-dumping duty is triggered by, and only by, the permutations and combinations set out in the notification issued in exercise of power under section 9A of Customs Tariff Act, 1975. 12. In the context of the notification resorted to in the adjudication order, it has to be clearly established that the impugned goods were produced in China. That is the test which the impugned order must overcome to exclude setting aside of the anti-dumping duty devolving on the importer. That the import is covered by invoice of M/s Reva Technologies, Dubai indicating the goods to be of Malaysian origin, backed by certification to that effect issued by Dubai Chamber of Commerce, is on record. That the bill of lading covers the shipment of the impugned go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of evidence supra, the deficiency in establishing the movement of the goods from China to Malaysia remains unfilled. There is, thus, no valid grounds for holding that the goods did originate from China and, thereby, liable to the anti-dumping duty. 15. The adjudicating authority has, on the basis of the very same evidence, found it appropriate to reject the declared value under rule 12 and for resorting to rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 to arrive at revised value for assessment. Though Learned Counsel sought to assail the appropriateness of the rejection, we prefer to examine the correctness of the method adopted for enhancement of the value. 16. It would appear from 9. Residual method.- (1) Subject to the provisions of rule 3, where the value of imported goods cannot be determined under the provisions of any of the preceding rules, the value shall be determined using reasonable means consistent with the principles and general provisions of these rules and on the basis of data available in India; Provided that the value so determined shall not exceed the price at which such or like goods are ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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