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TMI Blog2024 (12) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is for the party to prove otherwise. In relation, however, to 19 pallets which were having no marking of country of origin, the department is of the view that they are of Non Taiwanese origin needed to be proved by the party rather than they being asked to prove that such pallets were of Taiwanese origin. The assertion that once department has alleged something in show cause notice then it is for party to prove otherwise is erroneous as a general rule. In the instant case, there are 3 pallets each of Japanese origin (i.e. non ADD country) and 3 pallets of Chinese /Taiwanese origin (subjected to ADD country), therefore, without bringing in presumption, the remaining 19 cannot be treated as of Taiwanese origin. This is more so, as the consignment has emanated from Dubai which is a 3rd party country. Again department cannot extend the consequences of initial misdeclaration for all purposes including to the Rules of evidence, even when the statute does not provide for it. The scrutiny of the statute does not afford any such scope in favour of the department beyond the listed consequences of extended period of limitation and re-looking at the valuation. The departmental appeal is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Unless there is clear evidence in the form of markings on the sheet itself that they are of Taiwanese origin. Thus anti dumping duty is leviable only on the C. R. S. S. Sheers of pallet No. 6, 7 and 17 where it is conclusively proved in the form of markings on the sheets itself that they have been manufactured in Taiwan 5. According to the reasoning advanced by the department in filing the present appeal, goods (S. S. Sheets) on which demand of anti-dumping duty was dropped were akin to the pallets of Taiwanese origin and further, in the wake of mis-declaration, the Respondent, being the importer, ought to have provided documentary evidence about the country of origin of such goods. 6 The Respondent submits that it had entered into contract dated 01.03.2014 with overseas supplier for supply of Stainless-Steel Melting Scrap Grade-201 of UAE origin and not S. S. Sheets that were wrongly shipped to them. This fact has been duly stated by Shri Bhupesh Jabarmal Jain, Proprietor of Respondent in his statement dated 07.07.2014 narrated in para 7.2 of the Show Cause Notice. Hence, no adverse inference can be drawn on account of the inability of Respondent to produce certificate of origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originated from China and Taiwan. The goods were imported from Dubai and had 3 pallets on which Made in Taiwan was marked and 3 pallets on which Made in Japanese was mentioned. The department is of the view that the Commissioner in the instant case should have held that out of 22 pallets, 19 pallets which were not having any country of origin should also have been treated of Taiwanese/Chinese origin and subjected to Anti Dumping Duty as well as other penal actions. In this regard, the finding of the learned Commissioner is reproduced below: On origin and the remaining sheets (though not have any marking about the country of origin) have other marks, grade and thickness which are akin to the sheets having specific marking of country of origin. On going through the table at para 4 of the SCN, I find that only the CR S.S. Sheets of pallet no. 6,7 and 17 have specific marks that they are made in Taiwan. Rest of the CR S.S. Sheets of the remaining pallets do not have any such marking about the country of origin do not subscribe to the view that just because all the remaining sheets are of similar grade they also would have been C manufactured in Taiwan. My views are fortified from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same have been spelt out in the Statute itself, which in this instance is Customs Act, 1962. One of the consequences of such mis-declaration is to extend the period of limitation to 5 years and second consequence is that valuation of the goods can be re-visited by the department. 7.2 We also find both of these consequences have been meted out to the appellant, however, in appeal the department has come out with the proposition that mis-declaration puts onus on the party for all purposes, therefore, even the origin of the country on which no stamping was there had to be proved by the appellant party. We do not agree with this proposition, Once consequences of the mis-declaration have been meted out as statutorily required to the appellants, the onus to prove its own assertion that goods which were not containing any origin were of the Taiwanese origin and not of Japanese or any other exempt origin is on the department. It is the department who in the show cause notice is asserting that the goods i.e. 19 pallets were also of the Taiwanese origin. It is cardinal principle of pleadings and evidence that the one who asserts has to prove. Further, department has no right to assum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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