2003 (12) TMI 193 - AT - Customs

Appeal allowed, case remanded for duty determination. Drugs Authorities to investigate public health implications.

The appeal was allowed, and the case was remanded to the Commissioner of Customs for determination of duty and penalty. The tribunal highlighted the ... Anti-dumping duty - Country of origin - Evidence Issues Involved:1. Origin of Imported Vitamin C2. Validity of Documentary Evidence3. Anti-Dumping Duty Applicability4. Adjudication by Commissioner of Customs5. Appeal by Revenue6. Verification and Investigation Findings7. Legal Precedent and Rule of Evidence8. Remand for Determination of Duty and Penalty9. Referral to Drugs AuthoritiesIssue-Wise Detailed Analysis:1. Origin of Imported Vitamin C:Vitamin C imported by the respondent was claimed to be of USA origin. However, investigations by the Directorate of Revenue Intelligence (DRI) suggested that the goods were not of American origin but likely of Chinese origin. The investigation revealed that the address provided for the purported manufacturer, ProCaps, Inc., in Philadelphia, was actually a mailbox facility, and no manufacturing unit existed at that address.2. Validity of Documentary Evidence:The importer produced various documents, including an invoice, bill of lading, and a certificate of origin from Des Plaines Chamber of Commerce. Additionally, a Form-9 certificate from ProCaps, Inc. was presented, which was supposed to confirm the manufacturing of Ascorbic Acid at the given address. However, physical verification disproved the existence of ProCaps, Inc. at the stated location, indicating that the documents were false.3. Anti-Dumping Duty Applicability:The goods were initially cleared without anti-dumping duty based on the claim of USA origin. However, if the goods were of Chinese origin, they would be liable for anti-dumping duty as per Notification No. 104/2000 and Notification No. 118/2000.4. Adjudication by Commissioner of Customs:The Commissioner of Customs, Mumbai, in his order, held that the evidence provided by the Revenue was insufficient to prove that the goods were of Chinese origin. He emphasized that the burden of proof lay with the Revenue, which failed to provide concrete evidence regarding the Chinese origin of the goods.5. Appeal by Revenue:The Central Board of Excise and Customs appealed against the Commissioner's findings, arguing that the importer's claim about the country of origin was false and that the Commissioner should have ruled in favor of the Revenue based on the available evidence and circumstances.6. Verification and Investigation Findings:The investigation by the Indian Consulate General in New York confirmed that no manufacturing unit existed at the address provided for ProCaps, Inc. Further, correspondence seized during the investigation indicated that the foreign supplier, Aerchem Inc., and the Indian indenter, OPEC International, were aware of the false declaration and attempted to mislead authorities.7. Legal Precedent and Rule of Evidence:The tribunal referred to the Supreme Court judgment in the case of Sanjay Chandiram v. C.C., Calcutta, where it was held that if the country of origin certificate is found to be false, the declared value of the goods should also be rejected. The rule of evidence dictates that when a party fails to produce the best evidence in their possession, it implies that the claim is unfounded or false.8. Remand for Determination of Duty and Penalty:The tribunal allowed the appeal in favor of the Revenue, setting aside the Commissioner's order. However, it remanded the case to the Commissioner of Customs for a fresh adjudication on the correct amount of duty, interest, and penalty, ensuring a fair hearing to the respondent on these limited issues.9. Referral to Drugs Authorities:Given the shady conduct of Aerchem Inc. and OPEC International in this transaction involving pharmaceutical products, the tribunal directed the Registry to send a copy of the order to the Drugs Controller of India for further investigation. The Customs Authorities at the port of import were also instructed to inform the local Drugs Control Authorities about this import.Conclusion:The appeal was allowed, and the case was remanded to the Commissioner of Customs for determination of duty and penalty. The tribunal emphasized the need for further investigation by Drugs Authorities due to the potential public health implications.