Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs vs Shivas International on 15 February, 2007
Equivalent citations: 2007(116)ECC196, 2007ECR196(TRI.-CHENNAI), 2007(211)ELT614(TRI-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. The respondents in this appeal of the Revenue had imported mulberry raw silk of Chinese origin and filed two Bills of Entry declaring the goods to be of 6A/4A grades. The first Bill of Entry wherein the 6A grade was declared was filed on 22.4.2004 and the second one declaring the 4A grade was filed on 15.4.2004. The declared unit prices were US $ 20.40 and US $ 20.10 respectively. The assessments were made by enhancing these prices to US $ 21.40 and US $ 21.32 respectively and release of the goods was allowed on this basis without any test for grade. After a few months, based on intelligence received by SIIB of the Customs House, action was initiated by the department to recover anti-dumping duty from the importer in respect of the above goods. Accordingly, show-cause notices were issued to the party alleging that the raw silk imported by them must be of grade 2A and below and therefore AD duty was leviable thereon. This demand was contested by the party. In adjudication of the dispute, the Deputy Commissioner of Customs (Group - 7) confirmed the demands of AD duty after observing that the importer had agreed to minimal enhancement of value with intent to clear the goods without payment of such duty. But this decision of the Deputy Commissioner was set aside by the first appellate authority in an appeal field by the assessee. Hence the present appeal of the department.
2. Learned SDR reiterated the grounds of the appeal. Learned Counsel for the respondents defended the decision of the lower appellate authority and also opined that the department should be pulled up for having filed this frivolous appeal. After considering the submissions, we must be quick to endorse the view expressed by learned Counsel inasmuch as a decision to review such a prudent order as the one passed by learned Commissioner (Appeals) in this case could not have been taken without colossal ignorance of law or abysmal disregard for the sagacity writ large on the order under review.
3. Anti-dumping duty was leviable, at the material time, on mulberry raw silk of Chinese origin of grade 2A and below. This duty was not leviable on the higher grades. The importer declared the goods to be of grades 6A/4A. This declaration was accepted without any test for grade of the goods and the assessments were completed on that basis. Later on, in a manner reminiscent of the legendary lotus-eaters, the department dreams of the importer having imported mulberry raw silk of Chinese origin, of grade 2A and below, and clamps on them a case of evasion of AD duty. The adjudicating authority also dances to its tune, oblivious or regardless of the reality that the quality of the imported raw silk, in terms of grade to be ascertained, was determinative of the question whether the commodity was subject to AD duty. The Deputy Commissioner thinks that the importer had agreed to minimal enhancement of value of the goods with intent to evade payment of AD duty. He rejects the assessee's submission that they had not given their consent for such enhancement of value and that the department had suo motu loaded the value. The episode ends with the Deputy Commissioner confirming the demand of AD duty against the party. We would rather say that the episode has been given a befitting burial by the appellate Commissioner. But, to the dismay of any prudent man, a committee of two Commissioners has exhumed the buried. We must lose no time to re-bury it. But, before doing it, we would like to reproduce herein the relevant part of the appellate Commissioner's order, which, eminently enough, deals a blow on the arbitrary and vexatious adjudication proceedings, disposes of the case with the judiciousness expected of an appellate authority and serves to guide the department for the future. The impugned order reads thus:
I find that the appellants had declared the grade of the Mulberry Silk Yarn imported by them as 4A/6A, but the department was apparently unsure of whether the grade declared was correct or whether it could be 2A but did not want to test a sample and have managed to coax the appellants to accept enhancement of value to USD 21.40/21.37 per Kg. under the mistaken notion that by enhancing the value accordingly, revenue would be safeguarded and anti-dumping duty would no longer be imposable. It has to be borne in mind that the liability for anti-dumping duty would arise only if the goods are definitely of 2A grade or below and the department's suspicion that the goods might be 2A grade and loading the value on such wrong presumption, and the assumption that it would take care of revenue is highly irregular. If at all there was any inkling or reason to believe that the goods are of 2A grade instead of that declared, the goods should have been subjected to rigorous examination by way of drawl of samples and testing to ascertain if the goods were mis-declared and the matter should have been adjudicated. However, by loading the value without concrete evidence merely based on unproven suspicion, the department is vulnerable to the charge of arbitrariness and this has vitiated the entire adjudication proceedings. The non-testing of the sample of the imported goods in this regard is inexplicable, and without the test report the whole case fails. An order based on assumptions and presumptions without an iota of evidence is bad in law. The remedy in this case did not lie in a SCN to the importer but may have to be searched for elsewhere. Senior supervisory officers may like to look into the whole matter, so that such a situation is not repeated.
To review the above order is, by all means, a disservice to the cause of justice. It is sad that the crucial fact that the goods was not tested for its grade for AD duty purposes did not weigh with the Review Committee.
4. The impugned order is sustained and the appeal is dismissed.
(Operative portion of the order was pronounced in open court on 15.2.2007)