TaxTMI 
TaxTMI 
2003 (12) TMI 193
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent for the goods was placed by the importer through a trading firm M/s. OPEC International, Ghatkoper (W), Mumbai. M/s. OPEC International had ordered the goods from M/s. Aerchem Inc., 320, Northwalnut Street, Bloomington Indiana, USA, again a trading firm. 2. Based on intelligence that goods were not of American origin, the Directorate of Revenue Intelligence investigated into the matter. During the investigation, a copy of certificate in Form - 9, dated 1-11-2000 issued by M/s. ProCaps, Inc., 3741, Walnut Street Suite 635, Philadelphia, PA 19104, purported manufacturer, was also produced. The form 9 certificate is a requirement under 224 of Drugs Rules, 1945 and the certificate issued by ProCaps. Inc., Philadelphia stated inter alia that Ascorbic Acid USP XXIV was manufactured at 3741, Walnut Street, Philadelphia, PA 19104, Fed. I.D. No. 23-2858039. We read the relevant portion of the certificate issued by Procaps, Inc. as under : "(1) ............. (2) ............. (3) We declare that we are carrying on the manufacture of the drugs mentioned at the premises specified below, a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Procaps given at the top left corner of the said Form-9. There is no suite there. There is also no such mailbox in the said MBE Mailboxes, Enquiries were also made with a bank staff working in the said branch of Commerce Bank. He had also not heard of the existence of any such company. 3. Thus, there is no company or manufacturing unit by the name of Procaps Inc. at 3741 Walnut Street Philadelphia PA 19104. Indeed, as explained earlier, there is no manufacturing unit of any type at all at the given address". 3. Investigations at Bombay also revealed from seized correspondence that M/s. Aerhem was suggesting that Indian importer should accept Vitamin C of Chinese Origin. There was also suggestion by M/s. OPEC International to give document showing that Vitamin C was originated in USA but M/s. Aerhem was expressing their inability to give any "authenticated document" from USA Authority. 4. Based on the material collected during investigation, Show-cause Notice dated 26th April 2002 was issued by the Directorate of Revenue Intelligence, Mumbai alleging that the goods were not of USA origin but should be treated as of Chinese origin and anti-dumping duty levied on that basis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....turned on the correctness of the declaration of the country of origin. True, rule is that whoever asserts must prove. That is to ask who asserted. Here assertion was by the foreign supplier and the importer, that the goods were of USA origin. Therefore, it was for them to prove. They also tried to do so, by producing various documents, mainly Form 9, purportedly given by the American manufacturer, ProCaps, Inc. This form indicated the address of manufacture of goods, but on physical and other verifications at site it was found that no such manufacture existed there. So this is a case where the foreign supplier and the importer failed to prove their assertion. 10. That apart, the verification report of the Indian Consulate also gets support from attendant facts and circumstances. There was initial suggestion for mis-declaring the country of origin by the Indian indenter to the foreign supplier. Foreign supplier had also expressed its difficulty in giving any "authenticated document" from USA authority, as though, they were willing to go along with the suggestion, but for the difficulty in getting the documents. Further developments in the case also point to fraud. Once the invest....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s the supplier of the goods to the Indian importer. It procured the goods. Therefore, it was in the best position to identify the manufacturer and place of manufacture. Its failure to do so is even more surprising when the product in question is a pharmaceutical item. Production and sale of pharmaceutical products is under strict regulations all over the world. Most so in the USA. Still their supplier is not able to provide any material either from public domain or otherwise to substantiate its claim that supplier is a manufacturer of the goods and undertakes production in USA. The rule of evidence is clear. When a person in possession refuses or fails to produce the best evidence, in support of a claim, the conclusion to be drawn is that the claim is unfounded or false. 12. The case is also covered in favour of the Revenue by the decision of the Apex Court in the case of Sanjay Chandiram v. C.C., Calcutta. Facts were similar in that case also. The importer claimed assessment based on the country of origin certificate. That certificate was found to be false. A question arose as to whether the value declared could be accepted for the purpose of assessment when country of origin c....