Commissioner of Customs Vs Sree Nakoda Enterprises (CESTAT Chennai)
CESTAT Chennai held that claim of wrong supply made by the supplier merely supported by e-mails, the authenticity of which were never proved before the Adjudicating Authority, is unacceptable.
Facts- The assessee-respondent had filed two Bills-of-Entry through their CHA, for the clearance of goods imported from China which were declared as “Polyethylene Laminated in Rolls” under CTH 3921 1900.
Said Bills-of-Entry were facilitated by RMS without assessment and examination. But, however, the unclear description appears to have prompted the Revenue to open the containers which were later examined by the Dock Officers. Only “PVC Flex Fabrics” were found instead of the declared Polyethylene Laminated in Rolls, which attracted Anti-Dumping Duty under Notification No. 79/2010-Cus. dated 30.07.2010.
During adjudication, it appears that the respondent claimed ignorance by throwing the blame on the foreign supplier; that the supplier had sent the wrong consignment to them and thus requested the Commissioner to permit them to re-export the consignment in question.
The learned First Appellate Authority concludes that there was no deliberate misdeclaration, despite the fact on record that the same misdeclaration was repeated in the earlier import, on the part of the respondent and that the Department also did not come out with conclusive evidence to the contrary to the correspondence between the supplier and the respondent.
Conclusion-
The documents sought to be relied upon are nothing but e-mails, the authenticity of which were never proved before the Adjudicating Authority and hence, the presumption in terms of Section 114 of the Indian Evidence Act has to be drawn against the importer. The above discussion, in effect, is that the initial burden has to be discharged by the importer. It is only thereafter that the onus would shift to the Revenue and not vice versa.
FULL TEXT OF THE CESTAT CHENNAI ORDER
This appeal is filed by the Revenue against Order-in- Appeal C.Cus. No. 1278/2012 dated 29.10.2012 passed by the Commissioner of Customs (Appeals), Chennai.
2. Brief facts, as could be gathered from the Order-in-Original and the impugned Order-in-Appeal, are that the assessee-respondent had filed two Bills-of-Entry Nos. 5263238 and 5263239 both dated 22.11.2011 through their CHA, for the clearance of goods imported from China which were declared as “Polyethylene Laminated in Rolls” under CTH 3921 1900. Total invoice value of USD 10530.00 (CIF) and USD 10530.00 (CIF) was also declared.
3. It appears that said Bills-of-Entry were facilitated by RMS without assessment and examination. But, however, the unclear description appears to have prompted the Revenue to open the containers which later on came to be examined by the Dock Officers. It appears that what was found was only “PVC Flex Fabrics” instead of the declared Polyethylene Laminated in Rolls, which according to them attracted Anti Dumping Duty under Notification No. 79/2010-Cus. dated 30.07.2010. It thus appears that the following doubts/suspicion emerged thereafter: –
