The Chennai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that the emails of the supplier not authentic evidence to prove the contention of wrong supply by the importer.
M/s. Sree Nakoda Enterprises, 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. The Bills-of-Entry were facilitated by RMS without assessment and examination.
However, the unclear description 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, 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 Commissioner (Appeals) has concluded that it was the case of wrong supply made by the supplier for which the respondent could not be held liable.
It was evident that the respondent have made only formal representation, again perhaps trying to avoid the possible further probing/digging by the Adjudicating Authority, except requesting permission to re-export.
It was evident that the Department or at least the Adjudicating Authority never had any chance to address/examine this issue of ‘wrong supply’ and hence, there was nothing for the Adjudicating Authority to prove or disprove this, at the time of adjudication.
A two-member bench Mr P Dinesha,(Judicial) and Mr Vasa Seshagiri Rao,(Technical) observed that the documents sought to be relied upon are nothing but e-mails, the authenticity of which was 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 Commissioner (Appeals) committed an error in allowing the appeal of the importer without there being any evidence in support of the importer’s claim and hence, the impugned order cannot sustain.”, the bench held.
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