Per V.K. Agrawal : M/s. Supreme Woollen Mills Ltd. and Shri Sanjay Gupta have filed those Appeals against Order-in-Original No. 160/2002 dated 19.8.2002 by which the Commissioner of Customs has confirmed the Anti-dumping duty in terms Notification No. 81/97-Cus dated 24.10.97; confiscated the goods with consequential redemption fine and imposed penalties under Section 114 A and 112 (a) of the Customs Act.

2. Shri R. Parthasarthy, learned Advocate, submitted that M/s. Supreme Woollen Mills Ltd., a joint sector company with Punjab State Industrial Development Corporation (PSIDC); imported acrylic fibre from M/s. Flotec Co. Ltd., Taiwan and filed two Bills of Entry both dated 24.12.98 for manufacturing acrylic and synthetic yarn; that they declared the Country of Origin as Taiwan in accordance with the Certificate of Origin that accompanied the consignment and which was issued by the General Chamber of Commerce of Taiwan; that, however, investigation conducted by the Revenue concluded that the impugned goods were of Thailand origin and the original Bills of lading was exchanged with 6 switch bills of lading issued by N.Y.K. Taiwan, the shipper; showing the port of loading as keeling, Taiwan whereas the original Bills of lading clearly showed the place of loading as Bangkok; that a show cause notice dated 5.11.99 was issued, covering not only the said two consignments, but also four other Bills of Entry dated between 17.7.98 and 14.12.98; which has culminated in the impugned order.

3.1 The learned Advocate, further submitted that though they are not disputing the country of origin of goods being Thailand, they had not misdeclared the country of origin; that they had declared the country of origin in terms of the Certificate of origin issued by the Taiwan Chamber of Commerce; that they can not also be said to have colluded with the exporter in the alleged misdeclaration; that the General Chamber of Commerce of the Republic of China had confirmed that the Certificates of origin were issued by them and were authentic; they were, therefore, correct in their bonafide belief that the goods were of Taiwanese origin; that even the three telex messages relied upon by the Revenue do not refer to the Appellants as the party at whose instance the new bills of lading were issued; that all these telexes are correspondence exchanged between the Bangkok and Taiwan office of the shipping link NYK; that the fax message dated 22.1.99 to the effect that the split Bills of Lading were issued to meet the Appellants' requirement, is after the filing of bill of entry by them on 24.12.98 and recording the statement dated 5.1.99 of the officials of NYK; that this Fax message has been issued by Flotec Co. Ltd. more to cover up their wrong doing. He also pointed out that both the goods would have cost them almost the same as the price of Taiwan origin goods is more than goods of Thailand origin which would have subjected to additional duty (Anti Dumping duty); that as such there is no financial gain and therefore, the question of misdeclaration does not arise: He, further, contended that provisions of Section 111 (m) of the Customs Act are not applicable as the country of origin was specified by them in Bill of Entry with reference to the Certificate of origin that accompanied the consignment; that Proviso to Section 28 of the Customs Act is not invokable as there is no willful misstatement or collusion on their part; that they had demonstrated that they had no role in determining the country of origin of the goods; that similarly provisions of Sections 114 A and 28AB are not invokable.

3.2 Finally, the learned Counsel submitted that the levy of anti dumping duty is governed by Section 9 A of the Customs Tariff Act; that sub section (8) was inserted in Section 9A by the Finance Act, 2000 with effect from 12.5.2000; that prior to this amendment, there was no provision under Section 9 A for even recovery of anti-dumping duty leave alone there being a provisi