AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1250
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....st Asian Nations (ASEAN), benefit of exemption had been claimed by the Appellant against its import of roasted cashew kernel from Vietnam vide Bills of entry No. 5003672 dated 30.01.2018 in conformity to the above referred two Notifications No. 46/2011-Cus. and 63/2016-Cus., which were issued in accordance with the provision of the Customs Tariff (Determination of origin of goods) Act under the preferential trade agreement between the Government of Members state i.e. India in the instant case and the ASEAN. Intelligence was gathered by DRI that Appellant mis-declared the imported goods as "Roasted Cashew Kernel" falling under Tariff Item No. 20081910 and sought for denial of the benefit by proposing differential duty, interest with proposal for confiscation and redemption fine etc. as the same goods were held to be 'Plain Cashew Kernel'. Further investigation, Laboratory testing by the Cashew Export Promotion Council laboratory at Kerala, statement of the proprietor Mr. Okhayasho etc. reveal that imported goods were not roasted cashew and on the earlier occasion also. vide Bills of entry No. 5003672 dated 30.01.2018 another consignment of cashew from the same country of origin Viet....
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.... Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of Members states of the ASEAN) and the Republic of India Rules, 2009 published in the Notification No. 189/2009-Cus. dated 31.12.2009, argued that prima facie allegation against the importer is that he mis-declared the goods to avail the benefit of duty exemption but it is not dealt in accordance with the clearly stipulated procedure that was required to be followed by the Customs Authority of the importing country in case they have doubts about the certificate of origin issued by the competent authority of the exporting country as that has mandated resolving of such doubt in consultation with the competent authority issuing the certificate but the same procedure has been completely ignored by the Indian Customs to be followed that might have adversely impacted even the bilateral treaty and reputation of India in the international forum. Further, he submitted that certificate received from Food Safety of Standard Authority of India (FSSAI), required to be filed at the time of clearance of imported goods, clearly noted that the sample confirmed to the specifications prescribed u....
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....ring pendency of this appeal, they sought for wanting report of the CEPCI, that was prepared after making a separate study and the same report also confirmed that the samples were not "Roasted Cashew Kernel" but raw Cashew Kernel. In supporting the reasoning and rationality of the order passed by the Commissioner (Appeals), he further submitted that the CEPCI had tested and opined that the samples were plain/raw Cashew Kernel broken pieces and not "Roasted Cashew Kernel" for which prima facie there was mis-declaration of goods so as to avail benefit of duty exemption and the goods failed to qualify for the benefits provided under AIFTA vide Notification No. 48/2011-Cus. dated 01.06.2011. She concluded his argument in pointing out that FSSAI had only confirmed the specification but not conducted any test to determine it as roasted cashew or plain cashew and the certificate of origin from the exporting country did not reveal that any test was conducted at the shippers end, for which the order passed by the Commissioner (Appeals) needs no interference by this Tribunal. 5. I have perused the case record, test report, relevant notifications and the relied upon case laws. At the outset ....
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....this is the observation, then the sample should have been considered as roasted cashew since Fatty Acid presence is above 3% as for plain cashew Fatty Acid content should be less than 1.25% but surprisingly it (the report) said that on the basis of the above fact it was concluded that the sample was 'Plain/Raw Cashew Kernel' (baby bits). 7. Therefore, the only conclusion that can be drawn is that the report is devoid of all logic and it is apparently prepared to favour the department but it contains the basis of such preparation that is favouring the stand taken by the importer appellant. The report remained inconclusive as there was an indication to send analysis of 'roasting' of the sample product subsequently that was not done since April, 2018 till they produced some roasting reports through the concerned Commissionerate after its repeated insistence that had been forwarded to the AR office by the Deputy Commissioner of Customs, JNCH vide his letter dated 25.09.2022. Paragraph 4 of his letter reads as follows: "4. Attached is the detailed thread of the said e-mail communication(s) from CEPCI Lab, Kerala wherein Scientist of CEPCI Lab has clarified that the subject samples dr....