ELAM EXPORTS Vs. COMMISSIONER OF CUSTOMS (PORT), KOLKATA

JUDGEMENT

(1.) HEARD both sides. The appellants filed a bill of entry on 18 -6 -03 for clearance of a consignment of 1,70,000 dozens of AA battery cells of various brands. The country of origin was declared as Malaysia along with an invoice from Malaysia. A certificate of origin issued by the Malaysian International Chamber of Commerce and Industry was also submitted by the appellants. The bill of entry was assessed to duty and the appellants paid the assessed duty. Subsequently, the goods were examined in presence of the S.I.B. officials. On examination, the quantity was found as per declaration. But there was no marking of origin either on the goods or on the packages. The appellants were asked to provide the manufacturers invoice which was not submitted by them on the ground that the Malaysian suppliers did not make the same available claiming trade secrecy. The appellants also violated the terms of Notification No. 44(RE -2000)/1997 -2002 dated 24 -11 -2000 issued by the Ministry of Commerce & Industry, New Delhi, according to the Department, and also did not comply with the requirement of furnishing MRP and BIS Registration Number either on the impugned batteries or on the packages. It is also the Departments case that the impugned batteries were of Chinese origin, which were subject to anti -dumping duty.

(2.) THE learned Advocate for the appellants submits that the appellants were completely taken by surprise by the impugned Order as they had abandoned the consignment on 24 -3 -04 pursuant to the discussions with the adjudicating Commissioner during the personal hearing on the previous day on 23 -3 -04. The appellants had also submitted a detailed letter on 17 -5 -04 to the Department narrating what transpires in this case, which has not been controverted by the Department. The contents of the said letter is extracted below : -

(3.) HEARD the learned D.R. who states that the brand of batteries which have been imported are all made by Chinese manufacturers as per the result of search obtained from the internet. He also cites the following decisions in support of his arguments that when the country of origin is mis -declared to evade payment of anti -dumping duty, penalty is imposable : -