TaxTMI 
TaxTMI 
2024 (5) TMI 476
X X X X Extracts X X X X
X X X X Extracts X X X X
....g , Malaysia and country of origin as Malaysia and country of consignment was left blank. The inquiry revealed that the containers which were loaded from port Klang, Malaysia were earlier transported from Shanghai Port , China to port Klang, Malaysia. Therefore, it appeared that the goods were originated from China and hence, attracted to antidumping duty under Notification No. 82/2011-Cus dated 25.08.2011. Since the goods were cleared declaring the country of origin as Malaysia and without paying antidumping duty the goods appeared liable for confiscation under Section 111 (m) of the Customs Act,1962. Therefore, a show cause notice was issued proposing to confiscate the goods and demanding Anti-Dumping Duty and differential customs duty along with proposal to impose penalty under various sections of Customs Act. The adjudicating authority by the Order-In-Original confirmed the demand of anti-dumping duty and differential customs duty of Rs. 10,63,593/- and appropriated the same which was already paid by the appellant. He also ordered for recovery of interest of Rs. 1,01,310/- under Section 28AA of the Customs Act, 1962 and imposed penalty of Rs. 10,63,593/- under Section 114A and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the same is scanned below : - 4.1 From the above certificate of origin issued by Ministry of International Trade and Industry of Malaysian Government, there is a clear declaration in point no. 11 that the goods were produced in Malaysia. It is also mentioned in the certificate that the same was issued retroactively. We find that the entire case to hold that the goods is of China Origin was made out only on the basis of bill of lading and statements of various persons. However, in case of any doubt about the certificate of origin, a retroactive check needs to be conducted as per the procedure prescribed under Rule 9 of Custom Tariff (Determination of Origin of Goods under the Preferential Trade agreement between the Government of Republic of India and Malaysia) Rules, 2011 which is reproduced below:- "9. Direct consignment. - Originating goods shall be deemed to be directly consigned from the territory of the exporting Party to the territory of the importing Party if,- (a) the goods are transported without passing through the territory of any non-Party; or, (b) the goods are transported through the territory of any non-Party where,- (i) the transit ent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ect consignment. - Originating goods shall be deemed to be directly consigned from the territory of the exporting Party to the territory of the importing Party if,- (a) The goods are transported without passing through the territory of any non-Party; or, (b) The goods are transported through the territory of any non-Party where,- (i) The transit entry is justified for geographical reasons or transport requirements; (ii) The goods have not entered into trade or consumption in the territory of such non-Party; (iii) The goods have not undergone any operation in the territory of such non-Party other than unloading and reloading or any operation required to keep the goods in good condition; and, (iv) The goods have remained under the control of the customs authority of such non-Party." From the above rule it is mandatory that in case of any doubt about the authenticity of the certificate of origin. The Customs Authority of Government of India must request the Issuing Authority i.e. in the present case the Malay Chamber of Commerce Malaysia to check the authenticity of the certificate of origin. 4.1 We find that the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es does not amount to processingof cloves. It is observed from various provisions of SAPTA Rules and Notification No.105/99-Cus dated 10.08.1999 that there is no discretion or power with the Customs authorities to reject the certificate of origin given by the concerned contracting state. Para 9 of the same Schedule does give power to the contracting states to review/modify the said Rules. 4.1 It is also observed that Hon'ble Apex Court in the case of Zuari Industries Ltd. v. CCE & Cus (Supra) held as follows:- "9. Firstly, on the facts we find that the assessee had given to the Sponsoring Ministry its entire Project Report. In that report they had indicated that for the expansion of the fertilizer project they needed an extra item of capital goods, namely, 6MW Captive Power Plant. In their application, the assessee had made it clear that the fertilizer project was dependant on continuous flow of electricity, which could be provided by such Captive Power Plant. Therefore, it was not open to the Revenue to reject the assessees case for nil rate of duty on the said item, particularly when the certificate says so. In the judgment of this Court in the case of Tullow In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent seizure cannot stand. Therefore we hold that the seizure effected by the respondents is not in accordance with law. The impugned order of the learned Single Judge, in these circumstances, requires to be set aside and accordingly the same is set aside." 4.3 CESTAT, Delhi in the case of Dhar Cement Ltd. vs.- CCE Indore(Supra) after relying upon case laws of Supreme Court and Karnataka High Court, held as follows:- "7. We have heard both sides and examined the appeal records. This is the third round of litigation in the present case. The issue involved is the installed capacity of the appellant vis-`-vis their eligibility to Notification Nos. 24/91 and 5/93-C.E. The concession of notification is available when the installed capacity is not exceeding 1,98,000 T.P.A. It is admitted fact that the Director of Industries, Madhya Pradesh, who is designated as a competent authority in the Notification itself has more than once certified the installed capacity of the appellant to be 1,98,000/- T.P.A. As observed by the Hon'ble Supreme Court in normal circumstances such a certificate is to be acted upon. The Hon'ble Supreme Court directed this Tribunal to examine the vari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....In case the certificate was obtained by misrepresentation or not presenting full facts the only option left to the Department is to approach the competent authority with all the evidences to modify/cancel the certificate issued already. The Department did approach not only the Director of Industries but also Commissioner of Industries with all the evidences which were examined and the certificate was reiterated by the competent authority. As already noted, no other evidence was left to be considered." 4.4 In view of the above observations and the ratios laid down by the Courts certificates of origin produced by the Appellant cannot be discounted. There is no evidence on record that designated authority of Bangladesh under SAPTA Rules was maliciously involved with the supplier of cloves and the Appellant. 5. Adjudicating Authority has relied upon some indigenous sources to conclude that neither the imported goods are "processed cloves" nor the value addition to extent claimed is justified. Appellant asked for the cross examination of Shri Sunil Doletram Chhabria, Shri C.J.Jose, Dr.J.Chakraborty and Shri Pratab Chakroborty as per para-18 of Appellants reply dated 05....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingh v. State of Assam [1978 (42) STC 424 (Gau.)], held that when leaves and roots are removed from the onions then such onions become processed onions. Following observations were made by Hon'ble Gauhati High Court :- "To put the argument of the learned counsel in nutshell, his contention is that a person who sells onion produced in Assam is not a dealer inasmuch as onion is neither manufactured nor made nor processed. On this assumption, contends the learned counsel, that levy of sales tax on onion imported from outside the State of Assam is hit by article 301 of the Constitution which deals with freedom of trade, commerce and intercourse throughout the territory of India. It is argued that article 304(a) cannot come to the rescue of the State for justifying this levy inasmuch as article 304(a) provides that the legislature of a State may by law impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced. In support of this contention, the learned counsel has relied on State of Madhya Pradesh v. Bhailal Bhai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticle is taken to the market for sale. From this it will be clear that the commodity is subjected to a treatment or process. It does not remain in the same condition in which it was when embedded to the earth or as initially harvested. Looked at from this angle, we are inclined to hold that onion is processed and that is why the onion grown in the State of Assam has been rightly subjected to a levy of sales tax by the Government." 5.2 In view of the above case law of Gauhati High Court department cannot sit as on Adjudicator over the certificate of origin given by the designated authority under SAPTA Rules. Only an appropriate authority of Bangladesh could have certified as to what could be the value addition, after satisfying about the nature of processing activities done by the supplier and the extent of expenses incurred by such supplier in carrying out the activities of cleaning, handling, storage, sorting, packing etc.." B) In the case of R. S. Industries (Rolling Mills) Ltd. (supra) similar view was expressed by the coordinate bench of this Tribunal, the relevant part of the order is reproduced below: "5. We have heard both the sides and perused the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... regarding country of origin certificate and questions of bonafideness was discussed in the bilateral meeting of working group between the two countries on 5-6-2002 it was agreed that no detention or hold up of cargo is to be ordered on the question of bonafideness of certificates. Verification, if any, can be done post-facto with the concerned local nodal focal points at the respective headquarters. This much has been recorded in the letter dated 5-10-2004 of Department of Commerce, Government of Sri Lanka addressed to Commissioner of Customs (Imports), JNPT." C) This Tribunal in the case of M/s. MJ Gold Pvt. Ltd. (supra) dealing with the similar issue, has passed the following order: 5. Having heard the rival contentions, it is observed that vide the order under challenge the appellant is denied the duty exemption benefit for importing gold jewellery from Indonesia, despite Indonesia being the country in Appendix of the Notification No. 046/2011 dated 01.06.2011 which exempts the imports from Indonesia to such amount of duty as is mentioned in 4 th column of said notification. Foremost the Notification is perused. It is observed that the Notification exempts the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd white paper in conformity with the specimen as in the Attachment to these Operational Certification Procedures. It shall be made in English. The AIFTA Certificate of Origin shall comprise one (1) original and three (3) copies. Each AIFTA Certificate of Origin shall bear a reference number as given separately by each place or office of issuance. (b) The original copy shall be forwarded, together with the triplicate, by the exporter to the importer. Only the original copy will be submitted by the importer to the Customs Authority at the port or place of importation. The duplicate shall be retained by the Issuing Authority in the exporting party. The triplicate shall be retained by the importer. The quadruplicate shall be retained by the exporter. (c) In cases where an AIFTA Certificate of Origin is not accepted by the Customs Authority of the importing party, such AIFTA Certificate of Origin shall be marked accordingly in box 4 and the original AIFTA Certificate of Origin shall be returned to the Issuing Authority within a reasonable period but not to exceed two months. The Issuing Authority shall be duly notified of the grounds for the denial of preferential tar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er to hold that said certificate is not genuine. Demand of duty based upon reassessment ordered is actually not sustainable. I draw my support from the decision of CESTAT Hyderabad Bench in the case of Commissioner of Customs, Hyderabad vs Riddi Siddhi Bullions Ltd. reported as [2017 (355) ELT 585 (Tri-Hyd)] wherein it was held that the Adjudicating Authority cannot go beyond the provisions of Notifications that too to come to a conclusion based upon the assumptions and presumptions that the gold mined by the exporting country could not have been used by the supplier / manufacturer for producing the imported gold jewellery. It was held that the Notification provides for detailed verification process in case of reasonable doubt, it is not the case of the department that information was inconsistent with the certificate. In the absence thereof, it was held that the Adjudicating Authority could not have gone beyond the provisions of Notification. 10. I finally observe that the impugned Notification is a kind of preferential trade arrangement between States of Association of Southeast Asian Nations (ASEAN) and the Republic of India in order to facilitate free movement of trade....