TaxTMI 
TaxTMI 
2017 (9) TMI 398
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....ustoms, Air Cargo Complex Hyderabad in the proceedings in order-in-original No 69/2015 dt. 13/11/2015 held that the impugned gold jewellery do not qualify as "originating goods" in terms of Rule 4 of Customs Tariff (Determination of origin of Goods under the Preferential Trade Agreement between the Government of Member States of the Association of Southeast Asian Nationas (ASEAN) and the Republic of India) Rules, 2009 (hereinafter referred as the Rules) and denied the exemption. Aggrieved by such an order, the respondent preferred an appeal before the first appellate authority. The first appellate authority after following due process of law, allowed the appeal filed by the importer with consequential reliefs. The said order was reviewed by the Committee of Commissioners. 3. Learned AR submits that there are major inconsistencies in the case in hand as the issuing authority of the exporting country i.e. Indonesia in response to retroactive check sought by the Department in respect of 4 randomly selected certificate of origin out of large number of certificates issued under FTA in terms of Rule 16(a) of the said Rules, forwarded a letter from the supplier (M/s. PT Antam)wherein it ....
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....T 769 (SC)] which lays down that a person invoking an exception or an exemption provision to relieve him of tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of must go to the state. It is his further submission that Central Government has noticed a sudden spurt in import of gold from Indonesia and the certificate of origin pertaining to similar importers of gold in Hyderabad were forwarded to the Indonesian authority for verification, however the verification reports received from Indonesian authorities with respect to import from M/s. PT. Antam are inconsistent with each other and the inconsistency has been communicated to the Director General of Foreign Trade (DGFT), Ministry of Trade, Republic of Indonesia and the reply from Indonesia is still awaited. It is his submission that in view of this, the appeal filed by the Department may be allowed to finalise the case as per the outcome of the investigation. 4. Learned counsel appearing on behalf of the respondent draws our attention to the Notification No-189/2009 and No.46/2011-Cus and submits that in the entire notification there is nothing which i....
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....nal, allowed the appeal of importer by recording the following findings:- 7. The conclusion drawn by lower adjudicating authority, that as information in public domain is that Indonesia has mining capacity of not more than 65 tonnes, out of which 37 tonnes is exported, therefore, gold produced by supplier in the instant case, is made of mixing gold bars of foreign origin with domestic origin, is not backed by any evidence. In the instant case, even if Indonesia has a capacity of 65 tonnes, and after abating said 37 tonnes exported, there are balance stocks of 28 tonnes, sufficient enough to export disputed quantity of 5.0244 kgs to appellants. The ratio of instant export to stock is 0.018% and therefore, indicates a clear possibility of fulfilling the conditions. Further, the origin of product cannot be decided based on mere assumptions and presumptions. When the subject imports are backed by valid certificate of origin, any doubt or verification with regard to the same can be resolved as per the mechanism provided in Notification No. 189/2009-Cus(NT), dated 31.12.2009, and the lower adjudicating authority has no authority to travel beyond....
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....ing country to mine gold and the capacity of the supplier to refine the gold in his plant, that also based on unsubstantiated evidences. Further we notice and recorded by both the lower authorities that the exporter/supplier M/s PT. Antam is a reputed gold mining state owned company in Indonesia; source of gold for the consignment is from their own mines in Indonesia and the gold ore was sourced from one of their own mines; the names of the mines i.e. Pongkor Gold Mines and Cibaliung Sumber Daya and the addresses of the said mines were intimated to the adjudicating authority with a specific mention that the gold ore mined from these mines is refined and jewellery has been manufactured by the exporter in their own plant/factory. As against such categorical averment by the respondent's counsel before the lower authorities, the lower authority seems to have misinterpreted the provisions of rule 3 and 4 of, the Rules concerned and came to a unsustainable conclusion. Sub-rule (e) of Rule 4 specifically provides that minerals and other naturally occurring substances are considered as wholly obtained or produced if the same are extracted or taken from the exporting countries soi....