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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 ..... is upheld - appeals filed by the Revenue are dismissed. - HON BLE MR.ASHOK JINDAL, MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN, MEMBER ( TECHNICAL ) Shri S. Debnath, Authorised Representative for the Appellant None for the Respondent ORDER Per Ashok Jindal : The Revenue are in appeals against the impugned order. 2. The facts of the case are that the respondents filed a Bill of Entry dated 12.10.2007 for import of 1,70,000 dozen pieces of goods described as Zinc Choride Heavy Duty R6 AA Battery . The Country of origin was mentioned as Malaysia, for which, the respondent furnished the invoice and packing list of the suppliers at Malaysia. The Bill of Lading for voyage between Malaysia India and the Certificate of origin issued by the Malaysian International Chamber of Commerce Industry, Kuala Lumpur and the supplier of the goods was also mentioned as M/s NSF Dynamic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration SDN BHD, Malaysia, the supplier in the instant case, was merely a site-lender and a trading company. On visiting to the websites www.nishic.com and www.made.in.china.com, it was further revealed, inter alia, that : (i) M/s Shenzen Sincerity Union International Company Limited, Guangdong, China are the manufacturer or producer of the subject Nishica brand of batteries ; (ii) The said Nishica brand is recognished by domestic and overseas customers as batteries with best quality ; (iii) The production base of M/s Shenzen Sincerity Union International Company Limited includes Guangzhou Lixing Battery Factory (set up in 1993), Shenzhen Guangxi Company Limited (set up in 2001) and Guangzhou Liming Battery Factory (set up in 2006). 3.3 The ld.A.R. for the Revenue, further submits that no documentary evidence has been adduced by the respondents in support of their contention that there were other manufacturers of 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. On 01.10.2007, a message was sent by B. Batabyal, Assistant Director, DRI to the overseas agencies at Singapore to cause enquiry about these imports and the country of origin of these goods. But it is not on record before me as to what enquiry was made. An another message was sent on 03.10.2007 by the same person enclosing the copy of the certificate of origin No. KL/2007 147914 issued by MICCI and the bill of lading dated 09.07.2007. Under this message it was specifically requested to cause enquiry to ascertain (a) on what basis MICCI had issued the said certificate and (b) the manufacturer of the goods. From the copies of documents submitted by the appellant it is seen that an another message was sent on 12.10.2007 by the DRI to the overseas agencies. In this message the DRI conveyed that they have ascertained from the product details that the consignment is AA/AAA Battery (Nishica) and the manufacturer is Shenzhen Sincerity Union 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at manufacturer of the goods M/s. Shenzhen Sincerity Union International Company Limited of China . Thus the overseas enquiry proceeded on the premises that the manufacturer of the goods imported by the appellant was M/s. Shenzhen Sincerity Union International Company Ltd. of China. The point for consideration is whether the DRI proceeded on a correct premise. The answer to this is no. The appellant in reply to the show cause notice brought to the attention of the lower authority that in China alone, apart from M/s. Shenzhen Sincerity and Union International Company Ltd., there are other manufacturers, namely, M/s. Guangzhan Battery Industrial Co. Ltd., M/s. Golax Industrial Co. Ltd. and M/s. Hong Kong Summon International Trading Company Ltd., who manufacture Nishica brand of Heavy Duty R6 AA batteries. This fact is admitted by the lower authority in para 27 of the impugned order. This only goes to show that the usage of Nishica brand on batteries does 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch will help the buyer to directly purchase the goods from the manufacturer (at much cheaper price) and thereby eliminate the trader. It is for this reason that the trading company, when supplying goods do not reveal the manufacturer s name and that is why it is not mentioned on the certificate of origin. The present certificate of origin mentions the quantity, zinc chloride heavy duty battery, the suppliers and the appellant s name, port of loading, port of discharge etc. All these details are sufficient to identity the goods supplied by the overseas supplier. I, thus, do not find any infirmity in the certificate of origin. The findings of the lower authority are without substance in not accepting the certificate of origin. 14. In the mail DRI dated 03.10.2007 addressed to the overseas agency the DRI had specifically requested the overseas agencies to enquire the basis on which the MICCI had issued this certificate of origin. From the evidence on record, it is 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 chamb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in any proceedings (including the present proceedings). Thus only on the testimony of such Examiner can the chatting record can be admitted as evidence in the present proceedings. I find that none of the legal requirements either under Section 65B or under Section 79A have been complied with. Hence such chatting records has no evidentiary value. 17. In the context of the chatting records I would like to make a few observations Kishan Goswami of M/s. S. Kishana Co. has been in the export/import business for several years (which will be clear subsequently). He on 19.11.2007 wrote a letter to the A.C., Group VB, Custom House, Kolkata, seeking clarification regarding import of AAA batteries. This letter is very innocently written as if Kishan Goswami is a novice in the field of import of goods. A copy of this letter is marked to the DRI. Normally, even if, any clarification is sought, a copy of the letter is never marked to the DRI. Next day, Kishan Goswami is summoned 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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