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of <h1>Import of gold jewellery exemption: importer bears burden to prove entitlement; case remanded for fresh adjudication after supplying foreign documents</h1> Dominant issue: whether the importer bore the burden to prove entitlement to exemption under notifications governing import of gold jewellery. Court held ... Interim Rules of Origin - Certificate of Origin (COO) - Import of gold jewellery as per the procedure under notification 101/2004-Cus(N.T.) - local value addition of 22% to the non-originating gold - preferential tariff concessions for the Early Harvest Scheme - burden of proof in exemption claims - reversal of burden under Section 123 of the Customs Act, 1962 - remand for de novo adjudication - breach of natural justice - Notification No.85/2004-Cus - Notification No.101/2004-Cus (N.T.) - HELD THAT:- We find that the goods in question are jewellery made of gold, the import of which has been a subject of special treatment both under the Customs Act and the Foreign Trade Policy. While in the normal case discharge of the burden of proof as regards the allegations made in the SCN vests with the department, in the case of availing an exemption notification, the burden shifts to the importer as per the Hon’ble Supreme Court’s judgment in Dilip Kumar and Co.[2018 (7) TMI 1826 - SUPREME COURT (LB)]. Further as pointed out by revenue the fact that Section 123 of the CA, 1962 reverses the standard burden of proof, on the person, in the case of gold, makes this burden even more strict. Further the department has also submitted that when sufficient evidence is adduced the onus of proof shifts to the importer and adverse inference could be drawn against them if they fail to substantiate their case. While the department submits that it is left with no option but to issue the SCN and decide the matter within time limits if the details sought for from the overseas administration is not forth coming. Thus, there is a breach of the provisions of the principles of natural justice. This being a curable defect it is felt that the matter requires to the decided afresh on merits. The SCN has also been issued in this matter so as to remove the hurdle of time bar protecting revenue’s interest. We remand the matter to the Original Authority to re-examine the issue after making available the outcome of the reference made to the designated authority of kingdom of Thailand, as mentioned in the impugned order, if any or state otherwise. Documents relied upon in the impugned order which the appellant lists and states have not been supplied to them, should be made available, if requested. This would help make all relevant facts available. We accordingly remand the matter to the Original Authority to decide the issue afresh in denovo proceedings after supplying the documents as stated above. The appeal is disposed of on the aforesaid terms. Issues: (i) Whether the impugned adjudication suffers from a breach of natural justice by relying on materials not supplied to the appellant and whether the matter requires remand to the Original Authority for fresh adjudication after making available the outcome of the reference to the designated authority of the Kingdom of Thailand and supplying undisclosed documents.Analysis: The Tribunal examined the procedural record and submissions of the parties concerning the origin-related certificates and materials relied upon in the Order-in-Original. The Tribunal noted that while the central substantive question relates to eligibility for exemption under Notification No.85/2004-Cus read with Notification No.101/2004-Cus (Interim Rules of Origin), the adjudicating authority relied on certain documents and international price data that were not placed before the appellant during adjudication. The Tribunal observed that defects of non-disclosure and procedural unfairness are curable but require that the matter be reconsidered afresh with all relevant material available to the parties. In view of the reference made to the designated authority of the Kingdom of Thailand and the possibility of additional information, the Tribunal held that a fresh de novo adjudication after disclosure and after providing the appellant an opportunity to address the material is necessary to enable a fair determination on merits within the statutory framework governing origin certification, burden of proof for gold imports, and applicable notifications.Conclusion: The impugned Order-in-Original is not allowed to stand as finally adjudicated; the matter is remanded to the Original Authority for de novo adjudication after supplying to the appellant any documents relied upon and after taking into account the outcome, if any, of the reference to the designated authority of the Kingdom of Thailand. The appellant shall be permitted to advance oral and written arguments and the Original Authority shall decide the matter expeditiously and in any case within ninety days of receipt of this order.
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