Seizure Memo of DRI devoid of reasons liable to be Quashed & Set Aside

Match Graphics Private Limited Vs Union of India and Ors. (Gujarat High Court)

The Gujarat High Court in M/s. Match Graphics v. Union of India and Ors. [SCA No. 21236 of 2022 decided on 13.01.2023] held that the reasons should be stated in the seizure memo, order of provisional release and the order of extension of time period under the Customs Act.

FACTS

M/s. Match Graphics (hereinafter referred to as the ”Petitioner”) is a private limited company dealing with décor paper printing and purchasing raw materials both domestically and importing it from China. The Petitioner imports raw materials from Kingdecor (Zhejiang) Company (hereinafter referred to as “Kingdecor”) which is a joint venture of a Chinese company Xianhe Company Limited (hereinafter referred to as “Xianhe”) and a German company Schattdecor.

On 11.05.2022, a search operation was carried out by DRI(The Directorate of Revenue Intelligence, Ahmedabad) (hereinafter referred to as the “Respondent No.3”) at the Petitioner’s factory  premise and warehouse and  detained various raw materials on  grounds of misdeclaration of the source of the producer and lower payment of anti-dumping duty on its import.

The Respondent No.3  issued a Panchnama, Supratnama and a Detention Memo under Section 110 of the Customs Act, 1962 (hereinafter referred to as the “Act”) detaining the raw materials valued at Rs. 17,87,55,684/- (Rupees Seventeen Crores Eighty-Seven Lakhs Fifty-Five Thousand Six Hundred Eighty-Four).

On 18.06.2022, the Respondent No.3, further visited the premises of the Petitioner and verified that the raw materials were valued at Rs. 28,07,58,462/- (Rupees Twenty Eight Crores Seven Lakhs Fifty Eight Thousand Four Hundred Sixty Two) and another Panchnama and Seizure Memo was issued under Section 110(1) of the Act stating that the raw materials were liable for confiscation under Section 111 of the Act. .

The Petitioner vide letter dated 18.06.2022 requested the  Principal Commissioner of Customs (Preventive), Jamnagar (hereinafter referred to as the ”Respondent No.2”) and the Commissioner of Customs, Mundra (hereinafter referred to as the “Respondent No.4”) for the provisional release of the seized raw materials.

The Respondent No.2 on 27.07.2022 approved the request for provisional release of the raw materials subject to the Petitioner executing a bond of Rs. 24,41,31,320/- (Rupees Twenty Four Crores Forty One Lakhs Thirty One Thousand Three Hundred Twenty Only) under Section 110A of the Act along with an undertaking of pay penalty and interest which may arise in the future and furnish a Bank Guarantee of Rs. 11,00,00,000/- (Rupees Eleven Crores Only).

The Petitioner intimated Respondent No.3 of payment of Rs.25,00,000/- (Rupees Twenty Five Lakhs Only) made to the Commissioner of Customs, Pipavav towards anti-dumping duty on the ground of assurance for co-operation of ongoing investigation.

The Petitioner further replied to the Respondent No.2 requesting that the anti-dumping duty amounted to Rs.82,22,040/- (Rupees Eighty Two Lakhs Twenty Two Thousand Forty Only) and hence, the Petitioner be allowed to furnish a Bank Guarantee for that amount and the raw materials be released.

On 31.08.2022, the Petitioner intimated the payment of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) made to the Commissioner of Customs, Pipavav for assurance of co-operation in the ongoing investigation. The Petitioner had not received any communication from Respondent No.2. Hence, the present petition.

ISSUES BEFORE THE HIGH COURT

1. Whether the raw materials imported by the Petitioner were produced by a specified manufacturer already notified under anti dumping notification or otherwise ?

2. Whether the Seizure Memo under Section 110, Order of Provisional Release and Order of Extension of Time Period under Section 110A were valid as per law?

CONTENTIONS OF THE PARTIES

Mr. Anandodaya Mishra, on behalf of the Petitioner, submitted that the Respondent No.4 not only allowed the provisional release of the raw materials after the filing of the Petition, but also it was done in a mechanical and arbitrary manner.

Moreover, the Deputy Commissioner, Mundra on 07.11.2022, without the authority of law,  has merely communicated the extension of time period  for issuance of Show Cause Notice without stating reasons and has resulted in grave arbitrariness.

It was also submitted that on 09.11.2022, the Deputy Commissioner, Jamnagar also extended the time period for issuance of Show Cause Notice without assigning any reason to the same.

It was also asserted that the discretion of provisional release cannot be exercised in a mechanical manner and hence it has led to miscarriage of justice.

It was argued that the extension of time period has to be granted with reasonableness  by the Adjudicating Authority as stated in the Act. Moreover, the Order of extension as well as the order of provisional release of the raw materials has not been passed by the Adjudicating Authority empowered under the Act and the orders are  passed in a mechanical manner. Moreover, the order of extension as well as order of provisional release are not in accordance to Section 110(1) and Section 110A of the Act, respectively.

It was also contended that the Respondent No.2 and Respondent No.4 have failed to pass the order of provisional release in the capacity of an Adjudicating Authority. Moreover, there is no quantification nor basis for directions stated in the order of provisional release of the raw materials and is not of quasi-judicial nature and there is no judicial application of mind. The order of provisional release has merely communicated the conditions of provisional release.

It was also disputed that a mere suspicion on the part of Respondent No.3 regarding the producer of the raw materials cannot be the ground of confiscation. The Petitioner has already presented the documents supporting that the raw materials have been produced by Kingdecor.

The Respondents argued that the order of provisional release was in accordance to  Section 110A of the Act and in terms of Board’s Circular No. 35/2017-cus dated 16.08.2017. It was submitted that out of the 11,00,00,000/- of Bank Guarantee, 6,87,77,186/- was towards the differential duty and the remaining amount was to secure the fine in lieu of confiscation.

It was contended that the Petitioner has not exhausted the available remedy, as an appeal would lie under Section 129A of the Act. Hence, there is no violation of any fundamental right.

DECISION AND FINDINGS

The extension for issuance of show cause notice under Section 110A was not valid in the eyes of law as was issued by an authority other than the prescribed persons under the Customs Act.

The High Court observed that Kingdecor has declared that the raw materials bearing series “XH” and “KD” are produced by them. Moreover, vide Notification dated 28.09.2021, Xianhe has provided the information as an exporter of raw materials and not as the producer. Moreover, the Petitioner has already paid the anti-dumping duty at the rate of 116 USD per metric ton, amounting to Rs.88,22,040/-towards some quantity of the total consignment.

The High Court also observed that the Respondents have not completed the investigation yet. The High Court directed the Respondents to complete the inquiry within 4 weeks.

The High Court further directed the Petitioner to furnish a bond only of Rs.25,00,00,000/- and to disclose the property of Directors, and an undertaking on oath to not part with the raw materials till the completion of investigation within 4 weeks.

The High Court further quashed and set aside the seizure memo issued by Respondent No.3(DRI). The Respondents were directed to release the raw materials as soon as the bond was furnished by the Petitioner.

AMLEGALS REMARKS

The High Court in the present case has upheld that every memo or order issued under the Act whether judicial, quasi-judicial or administrative in nature should state the reasons for the same. The Court has quashed and set aside the seizure memo as the reasons are not assigned in it.

It is a trite law that any discretion conferred by legislation has to be exercised diligently along with reasons in a way that the legislative intent is achieved. Moreover, when a particular authority is given the powers for issuing certain orders; it should only be exercised by the designated Authorities.

The present case, was originally argued by Mr. Anandaday Mishra, Founder & Managing Partner, AMLEGALS, who represented the Petitioner in the matter.

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

1. The petitioner is a Private Limited Company and is engaged in decor paper printing and uses uncoated printing paper, decor paper, base paper and decor base paper as raw material for the purpose of final printing. It purchases the raw material domestically as well as imports the raw material from companies in China.

2. The Petitioner, in the past, has imported the raw materials from Xianhe Company Limited (hereinafter referred to as “Xianhe”) and Zhejiang Xianhe New Material Sales Company Limited (hereinafter referred to as “Zhejiang”). The Petitioner since December, 2019 has been importing the raw material from Kingdecor (Zhejiang) Company Limited (hereinafter referred to as “Kingdecor”) which is a joint venture company between Xianhe, and Schattdecor, a Chinese and a German Company respectively. The Kingdecor has two related companies Xianhe and Zhejiang in China.

2.1. The Kingdecor supplies the raw material in India through two agencies; M/s. Saraf Sales Corporation and Shah International. The petitioner imported the raw material from the Kingdecor through the agent M/s. Saraf Sales Corporation. The Respondent No. 3 carried a search operation on 11.05.2022 at the premise of the petitioner and inspected the stock of uncoated paper know as raw material at the factory premise and warehouse of the Petitioner. It detained the raw materials on the grounds of misdeclaration of producer’s source and lower payment of anti-dumping duty for import from other producers from China. The panchnama stated that search and investigation was issued by the respondent no.3 dated 11.05.2022.

2.2. A detention memo was issued by the respondent no. 3 under Section 110 of the Customs Act detaining raw material on 11.05.2022 and valued the raw material at Rs. 17,87,55,684/- (Rupees Seventeen Crores Eighty Seven Lakhs Fifty Five Thousand Six Hundred Eighty Four). A supratnama for the Safe Custody of the detained raw materials was also issued on the very day. On 18.06.2022, the respondent no.3 further visited the premises of the petitioner for the verification of the detained raw materials. During the verification conducted by respondent no.3, the raw material was valued at Rs. 28,07,58,462/- (Rupees Twenty Eight Crores Seven Lakhs Fifty Eight Thousand Four Hundred Sixty Two) due to some clerical error and weight of the raw material. Another panchnama was issued by the respondent no. 3 changing and correcting the valuation of raw materials. The seizure memo was given under Section 110(1) of the Customs Act on 18.06.2022 stating that the material has been seized and liable for confiscation under Section 111 of the Customs Act.

2.3. The raw material imported by the petitioner, according to the respondent, is not produced by the Kingdecor because the marking on the packing tape indicated “Crane Speciality Paper Xianhe Co. Ltd. Paper Branch”. The raw materials which are not produced by Kingdecor are liable for an anti­dumping duty of USD 542 per metric ton instead of USD 116 per metric ton and therefore, it is the case of the respondent that the petitioner evaded the anti-dumping duty amounting to Rs.7,89,23,278/- (Rupees Seven Crores Eighty Nine Lakhs Twenty Three Thousand Two Hundred Seventy Eight). The material which has been seized has been kept in the safe custody by way of a supratnama and the last one issued is of 18.06.2022.

2.4. On 20.06.2022, the petitioner requested the respondent no.2 for the provisional release of the raw materials seized on 18.06.2022. A request was also made to respondent no.3 for such provisional release. The Commissioner of Customs, Mundra also was sent a communication on 20.06.2022. The respondent no. 2 vide its communication dated 27.07.2022 approved the request of the petitioner for provisional release of the raw materials subject to the condition of the petitioner executing a bond of Rs.24,41,31,320/- under Section 110A of the Customs Act along with an undertaking to pay the penalty and interest, which may arise in the future and furnish a Bank Guarantee or a cash deposit of Rs. 11,00,00,000/-

2.5. The petitioner on 05.08.2022 intimated the respondent no. 3 of payment of Rs. 25,00,000/- made to the Commissioner of Customs, Pipavav towards anti-dumping duty on the ground of assurance for co-operation of ongoing investigation. The petitioner also replied on 08.08.2022 to the respondent no.2 in relation to the communication of 27.07.2022 and seizure memo of 18.06.2022. The request was made on the part of the petitioner that the anti-dumping duty of the seized raw materials amounted to Rs. 88,22,040/- and the petitioner be allowed to furnish a bank guarantee amounting to the said amount of anti-dumping duty and would furnish a bond along with undertaking and the raw materials be released. It is emphatically submitted by the petitioner that the documents are proving that the raw materials have been imported from Kingdecor.

2.6. The respondent no.3 was intimated on 31.08.2022 by the petitioner regarding the further payment of Rs.50,00,000/-done to the Commissioner of Customs, Pipavav for assurance of co-operation in the ongoing investigation. The petitioner had not received any reply on the request made from the respondent no. 2 causing financial hardship since the goods were seized since 18.06.2022 and therefore, the the petition is preferred seeking following reliefs:-

“(a) That this Hon’ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, to quash the letter dated 27.07.2022 conveying an order of the adjudicating authority to furnish Rs 11 crores (Rupees Eleven Crores) Bank Guarantee as it is neither an order nor has force of law;

(b) That this Hon’ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, to grant an interim relief by directing the Respondent No. 2 to provisionally release the raw materials on payment of Rs. 88,22,040/- (Rupees Eighty Eight Lakhs Twenty Two Thousand Forty Only) along with a bond of Rs. 24,41,31,320/- (Rupees Twenty Four Crores Forty One Lakhs Thirty One Thousand Three Twenty Only) pending the final outcome of this petition.

(bb) That this Hon’ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, to grant an interim relief by directing the Respondent No. 4 to provisionally release the raw materials on execution of bond of Rs. 3,66,27,143/- (Rupees Three Crores Sixty Six Lakhs Twenty Seven Thousand One Hundred Forty Three Only) pending the final outcome of this Petition.

(c) That this Hon’ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, to grant an interim relief to the Petitioner with a direction to Respondent No. 3 to not to take any coercive step including demand of further deposit of any amount in lieu of seizure pending the final outcome of this petition.

(d) That this Hon’ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction quashing the seizure memo dated 18.06.2022 issued by the Respondent No. 3 as without authority of law and Notification No. Case No. AD(OI) – 33/2020 dated 28^th September, 2021 and being carried out in stark contravention of Article 265 of Constitution of India;

(e) And pass, such further order/orders for granting relief(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.”

3. The draft amendment was moved by the petitioner which was allowed and accordingly the amendment also has been carried out.

4. Affidavit-in-reply on behalf of the respondent no.2 is filed by the Deputy Commissioner at Customs House where he has not admitted any of the statement, submission or averments. According to him, no fundamental or legal right of the petitioner has been violated because of the action or inaction on the part of the respondent and hence, no interference would be necessary.

4.1. It is also submitted that M/s. Match Graphics Pvt. Ltd. – the petitioner, vide letter dated 20.06.2022, requested for provisional release of seized imported goods namely ‘Uncoated Printing Paper’ weighing 1882001 Kgs valued Rs.24,41,31,319/- which was imported through Pipavav Port seized by the DRI, Ahmedabad Zonal Unit under seizure memo dated 18.06.2022 under section 110(1) of the Customs Act, 1962. The answering respondent vide letter dated 27.07.2022 issued permission for the provisional release of the goods imported through Pipavav Port only, which were seized vide seizure memo dated 18.06.2022 issued by the Directorate of Revenue Intelligence, Ahmedabad subject to execution of Bond for Rs.24,41,31,320/- and submission of Bank Guarantee of Rs. 11,00,00,000/-. This was permitted under Section 110A of Customs Act, 1962 and in terms of Board’s Circular No. 35/2017-cus dated 16.08.2017 and based on the information received from DRI – respondent no.3. There is no infirmity in the provisional release order and hence, there is also no contravention of the Article 265 of the Constitution of India.

4.2. The Central Board of Excise and Customs (now Central Board of Indirect Taxes and Customs) had vide its Circular No. 35/2017-cus dated 16.08.2017 prescribed the Guidelines for provisional release of seized imported goods pending adjudication under Section 110A of the Customs Act, 1962, which provides that the seized imported goods shall be released provisionally by the competent authority upon request of the owner of the sized goods, subject to executing a Bond for the full value/ estimated value of the seized goods. Further, in addition to the bond mentioned in the said para, the competent authority shall also take a bank guarantee or security deposit to cover the entire amount of duty/differential duty leviable on the seized goods being provisionally released and the amount of fine that may be levied in lieu of confiscation under Section 125 of the Customs Act, 1962 at the time of adjudication of the case. While securing the same, the competent authority shall take into account the nature of the seized goods, the duty and charges payable on the said goods, their market price and the estimated margin of profit. The amount of penalties that may be levied under the Customs Act, 1962, as applicable, at the time of adjudication of the case also should be covered. Depending on the specific nature of a case, the competent authority may, for reasons to be recorded in writing, increase or decrease the amount of security deposit as indicated.

4.3. It is further urged that considering the investigation and the seizure memo, the duty liability on the seized goods having been assessed at Rs.24.41 crores (rounded off) imported through Pipavav Port under the jurisdiction of Customs Jamnagar Commissionerate, is to the tune of Rs. 6,87,77,186/-. The respondent vide its letter dated 27.07.2022 informed the Petitioner that the Principal Commissioner of Customs (Preventive), Jamnagar being the adjudicating authority had ordered the provisional release of seized goods imported through Pipavav under Section 110A of Customs Act, 1962 on his furnishing the bond of Rs. Rs.24.41 crores and also on deposit of an amount of Rs. 11,00,00,000/- cash or by way of a bank guarantee. Out of the Bank Guarantee of Rs. 11,00,00,000, Rs. 6,87,77,186/- is to cover the differential duty involved on the seized goods and the remaining amount is to secure the amount of fine that may be levied in lieu of confiscation under Section 125 of the Customs Act, in addition to the penalties that may be imposed at the stage of adjudication of the case.

4.4. It is also stated that there is an alternative remedy as against the order of Commissioner of Customs, an appeal would lie under the Customs Act under Section 129A of the Customs Act, 1962. Hence, the petitioner has approached this Court without exhausting the available alternative and efficacious remedy. There is no violation of any of the rights much less any fundamental rights so as warrant any action under the writ jurisdiction before the Court.

5. The affidavit-in-rejoinder is filed by the Authorized Signatory of the petitioner. It is the say of the petitioner that vide its communication dated 19.10.2022 it had intimated the respondent no.3 regarding the payment of an amount of Rs. 13,22,040/- made to the Commissioner of Customs, Pipavav as balance payment out of the total of Rs. 88,22,040/- for assurance of co-operation in the on-going investigation. That fact has already been acknowledge by the Commissioner of Customs, Pipavav.

5.1. After filing the petition, according to the petitioner, the Assistant Commissioner, Customs, Mundra on 04.11.2022 allowed the provisional release of the raw materials subject to furnishing a bond equivalent to the valuation of goods and a bank guarantee of Rs. 2,03,00,000/- in a mechanical manner. The Deputy Commissioner, Mundra on 07.11.2022 has further extended the time period for six months for issuing show cause notice under Section 110(2) of the Customs Act, 1962 without stating the reasons in particular for the extension. This results into grave arbitrariness, according to the petitioner, where reason itself is wrapped under words which itself does not result into any specific reason.

5.2. On 09.11.2022, the Deputy Commissioner, Jamnagar granted the respondent no. 3 extension of period of six months under Section 110 (2) of the Customs Act without assigning the reason as to what was the difficulty with adjudicating authority in issuing notice if DRI is carrying out investigation and how it would prevent them from issuing confiscation notice at the first place. There has to be a reason to believe as to why the goods need to be confiscated and in absence of any reason to believe, as the petitioner has already imported the under-contested goods even prior to the levy of anti-dumping duty from the same supplier, it is implied that there is a bona fide of the petitioner. The petitioner has imported goods from the present supplier. The supplier and its allied group of companies has already been included by the investigating authority while levying the anti-dumping duty. Pending the adjudication, the seized goods are to be released by the adjudicating authority in terms of Section 110A of the Customs Act, whereby, the trite requirement of reasonableness is expected at any given point of time. The discretion of provisional release cannot be exercised in a mechanical manner so that it leads to miscarriage of justice.

5.3. It is further the say of the petitioner that show cause notice is not issued towards the seized goods under Section 124 of the Customs Act, within a period of six months from the date of seizure, further extension can be provided by the Principal Commissioner of Customs or Commissioner of Customs with the reasons to be recorded in writing for a maximum period of six months. The Respondents do not have a premium over the legislative intent to grant such an extension in a mechanical manner. The order of provisional release of goods also has not been passed by the adjudicating authority.

5.4. None of the adjudicating authorities, at Jamnagar or at Mundra have passed any order for the provisional release in the capacity of an adjudicating authority. There is no quantification nor any basis for any directions which have been communicated by a person other than the adjudicating authority. The provisional release also can be done subject to fulfillment of conditions, however, no order has been communicated in terms of Section 110A of the Customs Act. An order cannot be equated with a communication of any decision. The communication for provisional release of goods by Assistant Commissioner, Customs, Mundra dated 04.11.2022 is received after the filing of the petition. The identity of the Competent Authority also has not been disclosed in such communication.

5.5. It is further averred that the adjudicating authority is expected to pass an order which satisfies the elements of an order after following the principles of justice. The raw materials shall be released without any condition in absence thereof as neither any order has been passed for provisional release of goods nor any extension of time order has been passed presently, under Section 110A and Section 110(2) of the Customs Act, 1962, respectively. The order for provisional release shall be quasi-judicial in nature, but the adjudicating authority vide letter dated 27.07.2022 and 04.11.2022 have failed in applying judicial mind for the provisional release.

5.6. The Adjudicating Authority is to pass an order for provisional release of raw materials under Section 110A of the Customs Act with judicial application of mind. A quasi-judicial order shall be passed only after due consideration of facts, an opportunity of being heard extended to the parties, judicial application of mind and after due consideration, a reasoned order need be passed by the authority with reasons supplied in writing.

5.7. In the present case, the adjudicating authority has merely communicated the conditions for the provisional release without considering any features of quasi-judicial order. Moreover, the extension of time period has been provided by the Deputy Commissioner and hence, it is without the authority of law as it is the discretion of Commissioner of Customs to make an extension of period under Section 110A of the Customs Act. Non-speaking orders without any reasons for extension of time is also another aspect which is a must to take note of.

5.8. Relying on the Apex Courts decision in case of State of Rajasthan vs. Rohitas & Ors. (Appeal (Crl.) 361 of 2008] it is held that even for administrative order, the reasons are necessary and failure to provide reasons amount to denial of justice. Right to reason is an indispensable part of a sound judicial system, the reasons at least sufficient to indicate an application of mind to the matter before Court. The affected party can know why the decision has gone against him. Therefore, one of the salutary requirements of natural justice is spelling out reasons for the order made, a speaking out.

5.9. The Apex Court also in case of Kranti Associates Private Limited & Anr. vs. Masood Khan & Ors. [(2010) 9 SCC 496], has held that the Administrative Bodies performing quasi-judicial functions shall comply with the principles of natural justice, and hence, is obligated and is under duty to record reasons and pass a speaking order. The reasons introduces clarity in an order and therefore, it is emphasized that there shall have to be a reason and that is one of the fundamentals of good administration.

5.10. Moreover, it is contested that the raw material have code “XH” instead of “KD” and hence, it is doubted by the respondent no. 3 to be not produced by Kingdecor. It has been already stated that Kingdecor is a joint venture company between Xianhe and Schattdecor and Xianhe and Kingdecor are related companies. Moreover, the Kingdecor itself on 31.05.2022 has stated that the raw materials with series “XH” and “KD” both are produced by them. It is only presumed by respondent no.3 that the raw materials of code “XH” is not produced by the Kingdecor and hence, has wrongfully alleged a different rate of duty on the import of raw materials. Hence, mere suspicion on the part of the respondent cannot be a ground for confiscating the raw materials. The respondents themselves are not sure about their investigation and hence, they are seeking time to get report on actual manufacturer from China. This itself is establishing that entire case needs to be dropped which is based on suspicion and there should not be any hardship to the petitioner.

6. This Court has heard extensively learned advocate Mr. Anandodaya Mishra for the petitioner and learned Senior Standing Counsel Mr. Priyank Lodha for the respondents. They both have along the line of their respective pleadings argued fervently.

7. The Court has also perused, in detail, the material which has been produced as also the notification issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce, Directorate of General of Trade Remedies of 28.09.2021 with the subject of anti-dumping investigation concerning imports of Decor Paper originating in or exported from China PR.

6.1. It appears that it speaks of the Kingdecor being a limited liability company. It also says that the legal statute of the Kingdecor has not changed in the last three years. It has directly exported MT of Product Under Consideration (PUC) to India and MT through two different related traders namely Xianhe Company Limited and Zhejiang Xianhe New Material Sales Company Limited, China PR. The Kingdecor company has claimed the adjustments on account of the ocean freight, insurance, inland transportation, port and other related expenses, credit cost and bank charges. The net export price at ex-factory level for Kingdecor (Zhejiang) Co. Ltd. has been determined and is shown in the dumping margin table.

6.2. At the end of this, the designated authority recommended the imposition of anti-dumping duty equal to the lesser of the margin of dumping and the margin of injury so as to remove the injury to the domestic industry and accordingly, the authority recommended the imposition of the anti-dumping duty on the imports of the subject goods, originating in or exported from subject country, from the date of notification to be issued in this regard by the Central Government, equal to the amount mentioned in column 7 of the duty table appended in this order. The landed value of imports for this purpose also is permitted to be determined by Customs under Customs Act, 1962 and applicable level of the custom duties except duties levied under Section 3, 3A, 8B, 9, 9A Customs Tariff 1975. The duty table mentions thus:-

6.3. It is quite clear that the anti-dumping duty recommended by the authority is 116 USD per MT so far as the producer Kingdecor (Zhejiang) Co. Ltd. from China in relation to the decor paper. This comes under the heading 48059100 and 48022090.

7. The Kingdecor’s declaration which has come from the petitioner on 31.05.2022 also says that it is a joint venture established by Schattdecor AG from Germany and Xianhe Co., Ltd. from China on 13.09.2004 which is as follows:-

“Kingdecor (Zhejiang) Co., Ltd. is a joint venture established by Schattdecor AG from Germany and Xianhe Co., Ltd. from China on September 13, 2004, which is located in Qujiang Economic Development Zone, Quzhou City, Zhejiang Province. The name of “Kingdecor” comes from the family names of these two cooperated families, Schatt Family and Wang Family, which express best wishes and carries the mission to become global king in decorative paper industry.

We have XH and KD series of paper type for different markets and different customers.”

7.1. Thus, it has made quite clear that ‘XH’ and ‘KD’ series of paper type for different markets and different customers have been made by them. It is not being questioned that in notification dated 28.09.2021, there is a specific reference of Xianhe as a producer of decorative base paper, however, it had not been provided the information as a producer but, only as an exporter. Xianhe has stated that it produces the Speciality Paper. The product under consideration is only a Speciality Paper and clarification is required on how the product produces by the company is different from the subject goods. Xianhe stated that it does not have any joint venture, however Kingdecor is a joint venture of Xianhe and Schattdecor AG.

7.2. The Kingdecor has a related entity in India namely Shah International dealing in subject goods produced by the company and after all these details, under the heading of export price, it is specified that Kingdecor has been exporting the MT of PUC to India and MT through two different related traders namely Xianhe Company Limited and Zhejiang Xianhe New Material Sales Company Limited. It is not in dispute that the duty has already been paid as per 116 metric ton as the claim of the petitioner is that it had been on a regular basis getting the consignment from the Kingdecor company of the decor paper. The doubt has been created because of the two different series of ‘XH’ and ‘KD’.

8. Considering the brief note on the status of investigation in case against M/s. Match Graphics Pvt. Ltd. – present petitioner, we can gather that the reference has been forwarded to the overseas inquiries on 14.10.2022 along with the brief facts of the case and details required from China.

8.1. It appears that no response has been received so far and therefore, the reminder letter for expediting the report from the overseas inquiry also has been once again sent on 03.01.2023. We could notice from the material on record that the notification 77/2021 dated 27.12.2021 permits the paying of anti-dumping duty at the rate of 116 USD per matric ton to the person who is getting the uncoated printing paper or base paper from China if the manufacturer is M/s. Kingdecor (Zhejiang) Co. Ltd.

8.2. The panchnama has been carried out on 11.05.2022 and the doubt is created with regard to the goods which have been detained under Section 110 of the Customs Act after reexamination of the panchnama dated 18.06.2022. The seizure memo of 18.06.2022 had valued it at Rs. 28.07 crores. This inquiry, on the part of the respondent is not been completed so far.

9. The entire emphasis is on that the item code of the paper manufactured by the Kingdecor (Zhejiang) Co. Limited is with alphabet ‘KD’, the item code of the paper manufactured by the Xianhe Co. Ltd. is starting with ‘XH’ and the item manufactured by M/s. Zhejiang Xianhe New Materials Sales Co. Ltd. China also stats with ‘XH’. It is M/s. Saraf Sales Corporation which has acted as an agent. It is the note itself which is showing that the goods were traded and supplied by M/s. Kingdecor. It is the producer which is important to known and there has been a specific declaration given based on the Kingdecor’s own letter.

10. This being the case with the petitioner having already paid the anti-dumping duty at the rate of 116 USD per metric ton, with a further amount of Rs. 88,22,040/- where the differential duty amount has been paid.

10.1. Inquiry which is being conducted by respondent authority and the details which have been sent to the country of origin i.e. China for overseas inquiry sent on 14.10.2021 and thereafter once again on 13.01.2022, let the same inquiry be completed within four weeks’ period.

10.2. The petitioner is hereby directed to furnish the bond of entire amount of goods of Rs. 25,00,00,000/- (Rupees Twenty Five Crore) before the authority and shall also disclose properties of company and its directors before this Court on oath and also give an undertaking of not to part with the same till this inquiry is completed in above mentioned four weeks’ period.

10.3. The respondent no.4 is directed to release the goods in view of above para 10.2 and the operation of seizure order passed by the respondent no.3 under Section 110 of Customs Act is hereby quashed and set aside. Respondent authority shall release the goods as soon as the petitioner furnish bond of Rs. 25,00,00,000/- (Twenty Five Crore Only).

10.4. With above observations, the present petition is disposed of accordingly. However, it is clarified that other contentions of respective parties are kept open for the appropriate proceedings.