Judgment:
1. The issue involved in this appeal, filed by M/s. Rahul Associates, is whether the whole consignment of shoes imported by them is of Chinese origin as confirmed by the Commissioner (Appeals) under the impugned Order or a part thereof is of Indonesian origin as claimed by them.
2. Shri J.S. Agarwal, learned Advocate, submitted that the appellants for the first time imported a consignment of 3,648 pairs of assorted varieties of sport shoes from M/s. Adel Mohd. AL Hussain Trading Co, Dubai; that they had placed orders for shoes of Indonesian origin; that on examination of goods by Customs Officers, 936 pairs were found to bear stickers "Made in China"; that as the sports shoes of China origin are of inferior quality and subject to anti-dumping duty, they enquired from the supplier about supply of shoes of Chinese origin; that the supplier under Letter dated 2-12-2001 informed that due to mistake of porters and loaders, certain quantity of shoes of Chinese origin were loaded; that the Additional Commissioner, under Adjudication Order No.16/2001, dated 20-12-2001 confiscated the entire consignment with an option to redeem the same on payment of antidumping duty and imposed a penalty of Rs. one lakh, treating all the shoes of Chinese origin; that the Commissioner (Appeals) also has rejected their appeal holding that the conclusion arrived at by the Department on the basis of circumstantial evidence was sufficient to discharge the burden cast on the department. The learned Advocate, further, submitted that there is no evidence which can prove that the remaining quantity of shoes are also of Chinese origin; that though samples were drawn on 5-12-2001, no verification has been done nor any trade opinion has been taken; that the goods were examined on 2-12-2001 and immediately they had informed the supplier and, therefore, it cannot be alleged that it is an after thought or that the matter should have been taken after the dispatch of the goods; that they could take up the matter regarding supply of shoes of Chinese origin only after examination of the goods; that the certificate of origin cannot be brushed aside when only 26% of the consignment is of different origin; that merely because outer-exterior - packing was similar, it cannot be held that all the shoes are of Chinese origin. He relied upon the decision in the case of U.O.I. v.Pillaiyar Soda Factory, 1992 (57) E.L.T. 261 (Mad.) to emphasize the difference between 'same' and 'similar' and contended that the Panchnama dated 5-12-2001 used the words 'similar packing' whereas the Adjudication Order mentioned the words 'same packing' which is not correct. Reliance has also been placed on the decision in the case of Union of India v. Sampat Raj Dugar, 1992 (58) E.L.T. 163 (S.C.) in support of the contention that importer cannot be treated as owner of the goods. He also relied upon the decision in the case of Bin Sabt Jewellary v. Commissioner of Customs, New Delhi, 2000 (120) E.L.T. 169 wherein it has been held that goods are not liable to confiscation if the same are still within the Customs barrier. Finally, the learned Advocate submitted that provisions of Section 111(m) of the Customs Act are not applicable as the same relates to valuation. The learned Advocate also made the request for re-exporting the impugned goods.
3. Countering the arguments, Ms. Ananya Ray, learned Senior Departmental Representative, submitted that the Packing list at Page 15 of the Paper Book contains all the numbers of shoes which were found in the container; that thus it cannot be claimed by the supplier that wrong goods were loaded by porters and loaders; that if there was a genuine mistake, the packing list would have contained the different numbers and not the numbers which were stuffed in the container; that thus the mala fide in importing shoes of Chinese origin is clearly evident; that the entire consignment of shoes is of Chinese origin as the exterior packing of shoes bearing stickers "Made in China" and exterior packing of other shoes is the same. She, further, submitted that the mala fide of the appellants is evident from the Telex sent by them to the foreign supplier in which it has been mentioned by them that they are making the best possible approach and requested the officers and offers them any amount; that they have further mentioned that they are trying to influence Customs for charging Anti-Dumping Duty at minimum possible percentage and do not put any redemption fine or personal penalty on them. She also mentioned that Section 111(m) does not cover misdeclaration because of valuation alone as it applies to misdeclaration in respect of any particular made in the Bill of Entry. She relied upon the decision in the case of Pune Chemical Suppliers v. Collector of Customs, 1993 (67) E.L.T. 25 (S.C). The learned Senior Departmental Representative also mentioned that the imported goods had been assessed to duty on the basis of declaration made by them and they had also deposited the Customs duty assessed initially; that further at no stage of adjudication or even first appeal they had requested for re-exporting the goods back to the supplier and, therefore, at the stage of second appeal they cannot request for re-export of the consignment; that the facts in the case of Bin Sabt Jewellery, supra, are different inasmuch as the importer therein was found to be fictitious which is not so in the present matter and accordingly the ratio of the said decision is not applicable.
4. We have considered the submissions of both the sides. The fact, which is not in dispute, is that on examination of the consignment, 936 pairs of shoes were found to be of Chinese origin as per stickers. The suppliers have also admitted the same in his Fax message dated 2-12-2001. These pairs of shoes are liable for confiscation and also liable for levy of anti-dumping duty. The issue to be decided is whether the whole consignment is of Chinese origin. The adjudicating authority has treated the whole consignment to be of Chinese origin as one of the sticker was of paper slip which could be removed with ease.
Certificate of origin has been issued by Dubai Chamber of Commerce and the exterior packing was same as that of Chinese origin shoes. Emphasis had also been placed on the Telex Message of the Appellants in which they mentioned of influencing the Customs Department. After considering the submissions made by both Advocate and learned Senior Departmental Representative, we are of the view that the said material is not sufficient to come to the conclusion that the whole consignment consists of shoes of Chinese origin. The fact that exterior packings (carton) were same does not go to show that the shoes are of Chinese origin unless and until it is proved that the said packing was also of Chinese origin. We find substance in the submissions of learned Advocate that similar or same packing alone would not prove that the all shoes are of Chinese origin. Similarly issuance of Certificate of Country of origin by Dubai Chamber of Commerce and Industry does not lead to the conclusion that because 936 pairs of shoes were of Chinese origin, all pairs of shoes are also of Chinese origin. The Department has thus not been successful in proving that whole consignment is of Chinese origin. We, therefore, uphold the confiscation of 936 pairs of shoes only, set aside the confiscation of other pairs of shoes, and consequently reduce the redemption fine to Rs. 45,000/- only. The Anti-dumping duty will be leviable on 936 pairs of shoes only. We also reduce the penalty to Rs. 30,000/-.