2024 (4) TMI 1249 - AAR - Customs

AAR rejects copper tubes advance ruling application under ASEAN-India FTA due to inadequate value addition requirements

IN RE : L.S. METAL VINA LLC

AAR rejected advance ruling application for copper tubes' eligibility under ASEAN-India FTA benefits. Investigation by Jodhpur Preventative ... Determination of Origin of Copper Tubes exported to India and eligibility of such Copper Tubes for benefit of ASEAN-India Free Trade Agreement (AIFTA) - eligibility for exemption available under N/N. 46/2011-Cus., dated 1-6-2011 issued by the Indian Government under Section 25(1) of the Customs Act, 1962 - HELD THAT:- It is found that to determination of origin of copper tube under benefit of Asian-India Free Trade Agreement, Jodhpur Preventative Commissionerate, Jaipur Customs had initiated investigation into import of copper tubes taking FTA benefit from Vietnam and other ASEAN Countries and had found out that the value addition requirement to be unsatisfactory. Due to this, the FTA Cell, CBIC has been requested to thoroughly investigate the matter. Letters have been issued to all Customs formation for provisional assessment under bond and BG of such copper tubes and pipes imports so as to maintain uniformity in clearance and to check any port shifting by importers to evade said compliance. Further, the matter has been taken up by the National Assessment Centre (NAC) and, as per NAC minutes dated 8-11-2023, it was agreed to assess all Bill of Entry for copper tubes and pipes (CTH 7411 10) being imported from Vietnam and Thailand claiming India-ASEAN FTA benefit provisionally with Bond and BG as per Rules, or as per Merit duty leviable. Further, the concerned Commissionerate has requested to consider the situation of ongoing investigation in the matter is pending, the benefit of reduced or NIL duty on import of copper tubes from Vietnam under Indo-ASEAN FTA may not be allowed till the time investigation on this matter pertaining to the origin of the copper tubes imported from Vietnam is conducted. It is found that the matter of import of copper Tubes under benefit of Asian-India Free Trade Agreement (AIFTA) is under ongoing investigation and as well as under provisional assessment of Bills of Entry of such kind of imports. The instant matter does not appear to be maintainable and the instant application appears liable for rejection under clause 2(a) of Section 28(i) of Customs Act, 1962. Conclusion - The application for an advance ruling is rejected due to the ongoing investigation and lack of sufficient evidence to substantiate the origin criteria and eligibility for exemption under the AIFTA. Application rejected. ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment are:(a) Whether the copper tubes exported by the applicant to India satisfy the origin criteria prescribed under the Rules of Origin issued in terms of the ASEAN-India Free Trade Agreement (AIFTA).(b) Whether the copper tubes exported by the applicant to India are eligible for exemption available under Notification No. 46/2011-Cus., dated 1-6-2011 issued by the Indian Government under Section 25(1) of the Customs Act, 1962.ISSUE-WISE DETAILED ANALYSISIssue (a): Origin Criteria under AIFTARelevant legal framework and precedents:The determination of origin criteria is governed by the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of Member States of the Association of Southeast Asian Nations (ASEAN) and the Republic of India) Rules, 2009, notified by Notification No. 189/2009-Cus. (N.T.), dated 31-12-2009.Court's interpretation and reasoning:The Authority considered whether the copper tubes satisfy the origin criteria under the Rules of Origin. Rule 4 of the Rules of Origin specifies that goods not wholly obtained or produced in the territory of the exporting party can be considered as originating goods if they satisfy certain conditions, including a local value-added content of not less than 35% of the FOB value and a change in tariff sub-heading.Key evidence and findings:The applicant claimed that the copper cathodes imported from Indonesia were used to meet the value addition requirement. However, the concerned Commissionerate highlighted the lack of documentary evidence to substantiate the exclusive use of Indonesian-origin copper cathodes for the copper tubes exported to India.Application of law to facts:The applicant's model involved using a combination of copper cathodes from ASEAN and non-ASEAN countries to meet the value addition requirement. The Authority noted that the applicant had not provided sufficient evidence to verify the claim that the copper tubes met the origin criteria.Treatment of competing arguments:The applicant argued that the copper tubes met the origin criteria based on the use of Indonesian copper cathodes. However, the Commissionerate pointed out the ongoing investigation and provisional assessment of imports, which cast doubt on the applicant's claims.Conclusions:The Authority found that the applicant failed to provide adequate evidence to substantiate the origin criteria claim, and the matter was under investigation.Issue (b): Eligibility for Exemption under Notification No. 46/2011-Cus.Relevant legal framework and precedents:The exemption under Notification No. 46/2011-Cus. is contingent upon satisfying the origin criteria under the AIFTA.Court's interpretation and reasoning:The Authority considered whether the copper tubes were eligible for the exemption based on the satisfaction of the origin criteria. The ongoing investigation and provisional assessment were significant factors in the decision-making process.Key evidence and findings:The Commissionerate's opposition to the exemption was based on the lack of evidence and the ongoing investigation into the origin of the copper tubes.Application of law to facts:The Authority determined that the eligibility for exemption could not be established due to the unresolved status of the origin criteria.Treatment of competing arguments:The applicant's claim for exemption was countered by the Commissionerate's emphasis on the pending investigation and provisional assessment.Conclusions:The Authority concluded that the exemption could not be granted until the investigation was completed and the origin criteria were verified.SIGNIFICANT HOLDINGSPreserve verbatim quotes of crucial legal reasoning:'The very definition of advance ruling precludes any possibility of pronouncing any ruling in the present proceedings, where the act of import stands concluded.'Core principles established:The Authority emphasized that advance rulings cannot be issued in cases where the import is subject to ongoing investigations or provisional assessments.Final determinations on each issue:The application for an advance ruling was rejected due to the ongoing investigation and lack of sufficient evidence to substantiate the origin criteria and eligibility for exemption under the AIFTA.