Free trade certificate of origin upheld, customs exemption allowed and penalty demands set aside

Where the competent Sri Lankan authority, after bilateral consultation, cancelled only two defective certificates of origin and upheld the remaining certificates, the Tribunal held that Indian customs could not disregard that certified position for the other consignments. The imported goods covered by the valid certificates were therefore entitled to ISFTA preferential exemption. Once the exemption was accepted, the differential duty demand, confiscation and penalty under the Customs Act had no foundation, and the additional penalties sought under Sections 114A and 114AA were also rejected. Relief was granted to the importer and the Revenue's case failed.

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Issues: (i) whether the imported goods were entitled to exemption under the Indo-Sri Lankan Free Trade Agreement despite the Customs Department's challenge to the certificates of origin and the alleged breach of the 65% value-addition norm; (ii) whether the denial of exemption, demand of duty, confiscation and penalty could stand, and whether further penalties under Section 114A and Section 114AA of the Customs Act, 1962 were warranted.

Issue (i): Whether the imported goods were entitled to exemption under the Indo-Sri Lankan Free Trade Agreement despite the Customs Department's challenge to the certificates of origin and the alleged breach of the 65% value-addition norm.

Analysis: The dispute turned on Rule 7 of the ISFTA Rules, 2000 read with the notification-based scheme for preferential import treatment. The record showed that the Sri Lankan authorities had examined the Customs objections, cancelled only the two certificates found defective, and expressly declined to cancel the remaining certificates, stating that the products covered by those certificates satisfied the rules of origin criteria. The bilateral correspondence also showed that the alleged discrepancies were confined to specific ingredients in the two disputed certificates, while the remaining consignments were found to be in order. The Tribunal accepted that, in a free trade regime founded on mutual consultation and cooperation, the Indian authorities could not disregard the certified position reached by the competent Sri Lankan authorities in respect of the other certificates.

Conclusion: The goods covered by the remaining certificates of origin were held entitled to the ISFTA exemption.

Issue (ii): Whether the denial of exemption, demand of duty, confiscation and penalty could stand, and whether further penalties under Section 114A and Section 114AA of the Customs Act, 1962 were warranted.

Analysis: Once the certificates of origin for the impugned consignments were accepted as valid and in order by the issuing authority, the foundation for denial of exemption disappeared. The differential duty demand, confiscation proposal and penalty imposed under Section 112(a) of the Customs Act, 1962 therefore lacked support. For the same reason, the Revenue's plea for additional penalties under Section 114A and Section 114AA of the Customs Act, 1962 could not be sustained.

Conclusion: The duty demand, confiscation and penalty were set aside, and the Revenue's appeal for additional penalties was rejected.

Final Conclusion: The assessee succeeded in the challenge to denial of the customs exemption, and the Revenue's challenge to the absence of additional penalties also failed, resulting in relief to the importer and rejection of the Revenue's case.

Ratio Decidendi: Where the competent issuing authority under a free trade agreement has, after bilateral consultation, confirmed that only specified certificates of origin are invalid and has upheld the remaining certificates, the customs authorities in the importing country cannot deny preferential exemption for those remaining consignments or sustain consequential duty and penalty demands.

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