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TMI Blog2023 (8) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation SDN BHD, Malaysia. 2.1 Before the assessment, the DRI intervened to re-examine the goods and samples were drawn. The goods were also seized. On completion of investigation, a show-cause notice was issued to the respondents proposing confiscation of the goods for the reason that the respondents themselves have mis-declared the country of origin and RSP of the goods and for non-compliance of conditions under Notification No.44 (RE-2000) as the imported goods were of BIS Strandard 8144, for determination of value and the duty applicable for such goods and for imposition of penalties on the respondents. 2.2 The Adjudicating Authority absolutely confiscated the goods and re-assessed the duty under Tariff Item 85068090. It was held that the goods were manufactured in China, therefore, they are liable to pay Anti-dumping Duty. Thus, the total duty, which was payable on the import of such goods was worked out as Rs.44,52,952/-. Penalties were also imposed on both the respondents. 2.3 Against the said order, the respondents preferred appeal before the ld.Commissioner (Appeals), who after going through the records, set aside the order of adjudication and allowed the appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f "Nishica" Brand Batteries. Therefore, he submits that the impugned order is to be set aside. 4. None appeared on behalf of the respondents. However, we have heard the ld.A.R. for the Revenue and perused the records. 5. In this case, it is to be seen which is the country of origin of the imported batteries : (a) whether the respondent was correctly done the valuation of the impugned goods and whether such goods were imported in contravention of the requirement under DGFT Notification No.44(RE- 2000)/1997-2002 dated 29.11.2002. 6. We find that the said issue has been dealt with in detail by the ld.Commissioner (Appeals) in his impugned order and observed as under : "8. Dry cell batteries originating in China (even though shipped from elsewhere) or dry cell batteries exported from China are chargeable to anti-dumping duty leviable under notification No. 84/2001 - Customs, dated 02.08.2001. The levy was extended vide notification No. 8/2006- Customs, dated 16.02.2006 and further extended vide notification No. 57/2007 - Customs, dated 13.04.2007. It is keeping this in view that the customs and other agencies like the DRI, are vigilant and ensure that batteries manufactured in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n International Co. Ltd." of China'. The DRI requested the overseas agencies to cause further enquiry to ascertain as to whether the said company, that is, Sheizhen sincerity & Union International is having any manufacturing unit in Malaysia or whether Nishica brand batteries are also manufactured in Malaysia. 10. The primary evidence on which the lower authority has held that the imported batteries have originated in China is based on the letter dated 19.10.2007 written by Dr. K.N. Raghvan, First Secretary (Commerce), High Commissioner of India, Singapore. The letter reads as:- "I invite your attention to the mail send by you regarding the investigation being conducted into the report of Zinc Chloride Heavy Duty R6 AA battery imported in Kolkata where the overseas supplier was M/s. NSF Dynamic Corporation SDN BMD, Malaysia. It was also informed that manufacturer of the goods M/s. Shenzhen Sincerity & China International Company Ltd. of China. You had requested this office to ascertain the country of origin of the said consignment and as to whether M/s. Shenzhen Sincerity & Union International Company Ltd. have any manufacturing unit in Malaysia. The matter was referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not particularly belong to any one particular manufacturer. It is a common brand name for batteries. There may be other manufacturers of this brand of batteries elsewhere in the world refer www.asianproducts.com. Thus the whole basis on which the DRI proceeded to make overseas inquiries was itself faulty. 12. The DRI had also requested the overseas agencies to enquire whether Nishica brand Zinc Chloride R6 AA batteries were manufactured in Malaysia. No enquiry seems to have made. The reply furnished by Dr. K.N. Raghavan nowhere states that Nishica brand heavy Duty R6 AA batteries are not manufactured by anybody in Malaysia. He was as well asked to enquire whether there is any manufacturer of Nishica brand of batteries in Malaysia. Dr. K.N. Raghavan has partly replies by stating that neither M/s. Shenzhen Sincerity & Union International Company Ltd. nor M/s. NSF Dynamic Corporation SDN BMD manufacture Nishica brand heavy Duty R6 AA batteries. The enquiry is thus incomplete and does not answer what was asked as stated above. It does not go to prove that there are no manufacturers of Nishica brand of batteries in Malaysia. Hence, the evidence that has been collected and brought out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that no enquiry seems to have been made. This was the most vital enquiry and it is not understood why no answer was obtained by the overseas agency on this. A certificate of origin issued by an international chamber has great authority. In order to substantiate that it had been wrongly given, tangible evidence against it had to be gathered. But none was collected. In the absence of this, due regard has to be given to the certificate of origin. Thus in terms of this certificate, the impugned goods are to be held as of Malaysian origin. 15. It is admitted fact that all batteries on examination were found to have on them printed 'made in Malaysia'. When the goods have on them printed the country of make, it implies that the goods are made in Malaysia. The onus is heavy on the Department to disprove that such batteries were not made in Malaysia. The Department has to come up with cogent evidence that the printing on the jacket of the batteries was forged by the supplier of the goods or by some other person. There is not an iota of evidence which goes to disapprove such printing of 'Made in Malaysia' on the jacket. In the absence of this, such printing in the jacket leads to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned by the DRI and he produces the purported chatting records to the DRI. This, for the Department, forms a vital piece of evidence for holding that the imported goods by the appellant were of Chinese origin. The appellant, before the lower authority as well as in appeal produced copies of CBI charge-sheet, Court note sheet orders which reveals that in four cases, Kishan Goswami had been prosecuted by the CBI regarding fraudulent imports. Even bail was denied to Kishan Goswami. It is stated by the appellant that S. Batabyal was the DRI officer who investigated these cases where prosecutions were launched. 18. From the above, I hold that the lower authority has failed to disapprove that the imported batteries originated in China, even if the degree of proof is taken to be the prepondence of probabilities. On the other hand, the MICCA certificate and the printing of each battery go to show that the imported batteries were manufactured in Malaysia. I, thus, on the basis of evidence on record, hold that the imported batteries are of Malaysian origin." 7. With regard to the valuation also, the ld.Commissioner (Appeals) has observed as under : 19. The next question for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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