TaxTMI 
TaxTMI 
2020 (3) TMI 492
X X X X Extracts X X X X
X X X X Extracts X X X X
....dt. 22.07.2011 were mentioned. The diamonds were declared to be of mixed origin. The said diamonds were procured by M/s SRDSIL, FZE, UAE from M/s CD Jewels, DMC, UAE who in turn had procured them from M/s MBABDA Diamonds Pvt. Ltd. through Mineral Metal Trading Corporation of Zimbabwe vide invoice no. PD006/01/11 dt. 20.02.2011 and KP Certificate No. ZW 000114 dt. 12.11.2010 and the remaining diamonds were procured from another local diamond trader M/s Alliance Impex, FZE, UAE vide Invoice No. LOC/0254/2011-2012 dt. 16.11.2011 and KP Certificate No. EC 00276664 dt. 22.07.2011 issued by the authorised officer of the European Community Kimberley Process Certificate Import confirmation office. Based upon investigation the Appellant M/s SRDSIL were issued show cause notice dt. 01.03.2016 alleging that the diamonds were from Marange mines of Zimbabwe and were not permitted to be imported in India as the KP Certificates accompanying the consignments were not issued in accordance with the restrictions imposed by the KP Committee from time to time. The diamonds were seized and released provisionally. The Show Cause Notice proposed to confiscate the diamonds and to impose penalties under Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2. Learned Advocate Shri Rohan Shah appearing for both the Appellants submits that the impugned order is not sustainable. The adjudicating authority has wrongly considered the date of sale invoice i.e 20.01.2011 as date of procurement which is subsequent to 17.11.2010. Theterms "procure" has wrongly been equated with term 'sale' and even with date of sale. In absence of any definition of term "procure", the same cannot be equated with term "sale". It is well settled both commercially and legally that raising of an invoice is based on commercial factors agreed between the parties and the date of raising an invoice has no necessary co-relation with the date of sale of goods. The documents shows that the diamonds were procured before 17.11.2010 by C.D. Jewels and even the adjudicating authority has held that the legitimacy of K.P. Certificates issued by Zimbabwe prior to 17.11.2010 cannot be procured and yet he ignored the said certificate which would only be obtained subsequent to an order of rough diamond being placed. The KP certificates clearly identified CD Jewels as buyer of the diamonds and therefore affirms that the diamonds are clearly at the very least earmarked for CD J....
X X X X Extracts X X X X
X X X X Extracts X X X X
....clearly evidences that there was an order placed by CD Jewels on MMCZ prior to 12.11.2010 and certainly prior to 17.11.2010. The diamonds were subsequently invoiced by MMCZ vide invoice no. PD006/01/11 dt. 20.01.2011. However the placing of order and sale thereof by MMCZ to CD Jewels took place prior to 17.11.2010 and hence the impugned order has incorrectly concluded that the facilitation provided vide OM dt. 19.08.2011 is not available to the Appellants. He relies upon the following documents to show that the diamonds were received prior to 17.11.2010 : (i) Letter dt. 16.08.2011 by CD Jewels to Mr. Abbey Chikane, KP Monitor, South Africa which requested that it be certified that the diamonds purchased by M/s CD Jewels from MMCZ (MBADA Diamonds), Zimbabwe were purchase prior to 17.11.2010. This letter was written as UAE authorities required proof of procurement prior to 17.11.2010 to sanction release of the diamonds. (ii) Letter dt. 26.08.2011 by Mr. Abbey Chikane issued in response to above request. This letter issued by KP Monitor evidences that the diamonds were in fact procured by CD Jewels, UAE prior to 17.11.2010. On this basis the consignments were cleared....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arange Mines in Zimbabwe at length and the impugned goods has been certified after such exercise. That the diamonds are not of Zimbabwe origin but of mixed origin as stated in KPC certificates. That the UAE authorities issued 5 KPCs on 17.11.2011 and 20.11.2011 after perusing the various documents submitted by SRDSIL FZE alongwith their application seeking issuance of the KPCs. The UAE KP Authority also examined sample of diamonds exported to India. These KPCs therefore evidence that there was no contravention of the KPCs provisions and issued KPCs after due process. He submits that the Office memorandum dt. 24.11.2011 issued by the Ministry of Commerce lifted ban unconditionally if the imported goods had the requisited KPCs with them. The OM dt. 24.11.2011 does not envisage condition whereby diamond which were procured prior to 17.10.2011 only could be imported into India post lifting such ban. An importer could import rough diamonds prior to 17.10.2011 with a valid KPC even without OM dt. 24.11.2011 being in place. The interpretation of adjudicating authority is thus bad in law. 3. Shri T.G. Rathod, Learned (Authorised Representative) appearing for the revenue submits that sin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the Appellant. Had the KP Certificate not been identified the buyer of goods and would have been post 17.11.2010, it would have led to conclusion that the goods were procured post 17.11.2010, but when the procurement was already in place as the seller and the buyer and even the KP Certificate recognised the goods in transaction prior to 17.11.2010 and such KP Certificate has not held to be void, it has to be construed that the goods were already procured. Further the OM dt. 19.08.2011 does not create any bar on the impugned goods as the OM dt. 24.11.2011 states that in KPCS (Kimberley Process Certification Scheme) an agreement on resumption of exports of rough diamonds mined from KP Compliant mines in the Marange area in Zimbabwe including MBADA has been reached. It also requested the Customs to again allow import of rough diamonds supported by prescribed KP documentation from the Marange region in Zimbabwe. Notably this OM dt. 24.11.2011 is not with any rider. There is no reference of any date as to from which the diamonds from Marange area are to be allowed. It does not contain the date of excavation, sourcing or purchase date of diamonds by any intermediary or the first buyer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the goods to be conflict free as apparent from their letter dt. 20.01.2011 In such circumstances and facts as above the goods cannot be held to be banned. 4.2 Further the Kimberly Process certificate ZW 0001114 shows the diamonds to be conflict free which is as under : 4.3 We find that the fact of KPC Certificates which holds that the goods were KPCC Compliant and the aforesaid documents unequivocally proves that the diamonds were procured by CD jewels before 17.11.2010. Unless and until such procurement was in process, there would not have been any KP certification and even the certificates show the buyer of goods as CD Jewels. Thus when the contracting parties and the authorities concerned with the certification process conclude that the procurement was prior to 17.11.2010, the same cannot be questioned as all these documents stands accepted by the adjudicating authority as far as their veracity is concerned. In such case only on the ground that the invoice was issued to M/s CD jewels after 17.11.2010, the same cannot be a ground to hold that the diamonds were banned from importation. Further had the goods were not procured, they would not have been identified with M/s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e not liable to confiscation and set aside the redemption fine and penalties, the Appeal filed by the revenue seeking enhancement of fine and penalties does not survive, hence the appeal filed by the revenue is dismissed. (Pronounced in the open court on 12.03.2020) ============= Document 1 5 เภMBADA DIAMONDS HEADQUARTERS O Mock C, Sam Levy's Village Dmbabwe mood.com MBADA DIAMONDS To Kimberly office. Dubal Customs. Dubal-UAE Sirs. Ref Our Invoice no: PD006/01/11 dt 20.01.11. Lot 17. KP certificate.00: ZW 000114 dt 12.11.10 We refer to the above documents in connection with supply of rough diamonds to M/s CD Jewels DMCC, Office BC-199, Almas Tower, Dubai-UAE. We hereby confirm that the above rough diamonds were lospected, purstiased and confirmed to be supplied to M/s CD Jewels DMOC before 17 smber 2010 and only the documentation was done later. Thanking you For MBADA DIAMONDS Document 2 28 Exhibit No-'F' 1. Abbey Chikane, South African Identity number 5710285846084, in my capacity as the officially appointed Kimberly Process Monitor, hereby confirms that the following Kimberly Process ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... approve that this interpretation is correct; Further we hereby confirm that following the lack of consensus between Participants, the UAE KP Office will not allow any further Mararige Imports I hope this clarifies things so we can close this chapter. Looking forward to your reply, I remain, Yours sincerely, A Peter Meeus Chairman Dubal Diamond Exchange Almas Tower Level 2. Jumeirah Lakes Towers PO Box: 48800 Dubal U.A.E T..+971 4 433 67 11 F. +971 4 375 18 96. [email protected] www.dde.ac The Dual Clamon bo Duba by Dubal brbs Carers, free tel by Dub Hult Care Cares Authority Document 5Traceback (most recent call last): File "C:\inetpub\vhosts\taxmanagementindia.com\httpdocs\python_image_text_project\google\direct_extract_text.py", line 19, in from google_doc_api import process_single_document File "C:\inetpub\vhosts\taxmanagementindia.com\httpdocs\python_image_text_project\google\google_doc_api.py", line 345 elif mime_type in ["image/gif"]: IndentationError: expected an indented block after 'if' statement on line 341 Document 6Traceback (most recent call last): File "C:\inetpub\vhosts\taxmanagementin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....January 2011 CD Jewels DMCC MINERALS MARKETING CORPORATION OF ZIMBABWE Unit No. Almas-BC-199 Almas Business Centre DMCC Level no.2 Almas Tower Plot No. LT-2, Jumeirah Lakes Towers Dubai, UAE. Document 11 MBADA DIAMONDS HEADQUARTERS 10 New Office Park, Block C. Iam Levy's Village Sonowdale, Harare, Dimbabwe PO Box CT1342 Couseway. Harare. [email protected] www.mbadadiamonds com 20 January 2011 CD Jewels DMCC Unit No. Almas-RC-199 Almas Business Centre DMCC Level no.2 Almas Tower DIAMONDS Plot No. LT-2, Jumeirah Lakes Towers Dubai, UAE. INVOICE Invoice No.: PD006/01/11 Lots: 17 +2434084229 Quantity (cts) Price (USD/ct) 39.27 353,498.51 Product Rough Diamonds Quality: ROM Quantity in kgs "6.70 kgs Sales Basis Payment Terms Exchange Rate Payment Route Proposed Port of Exit Country of final Destination Es Works, Ifarare Value (USD) 20,951,856.69 1 payment before dispatch in South African Rands (ZAR) l'o be confirmed and agreed before payment is effected. For Rand Inflows Standard Bank of South Africs Account Number Sw....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nature of Importing Official Stamp of Importing Authority Import Confirmation rough dianons accompanied by this Certificate were imported Signature of Inspector: SD Signature of laspector: S.D. Mahn Name of Importer CO JEWELS DMCC Name & Signature of Registering Officer SMANCUSO MAKE سجد ame of Importer CD JEWELS Dncc Name of Importan CD JEWELS DMCC Name & Signature of Exporting Autori: A CHA-DA Name & Signature of Regulakay Audity wwww MMCZ's Copy Exporter's Copy OBERT fines & Mining Development MPOF and verified in compliance with the Kimberley Process Certificate Scheme for Rough Diamonds Copy of Certificate o 12 Document 13 Subject: F.No.11/02/2010-EP(G&J) Government of India Ministry of Commerce & Industry Department of Commerce EP(G&J) Section Exhibit No R New Delhi, 24th November, 2011. OFFICE MEMORANDUM Trade of rough diamonds from Marange mines in Zimbabwe. The undersigned is directed to refer to this Department's O.M. of even number dated 18.11.2010 (Copy enclosed) regarding ban on trade of Marange diamonds from Zimbabwe and to say....