TaxTMI 
TaxTMI 
2025 (1) TMI 688
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....of UAE origin. Accordingly, a sales contract dated 02.07.2019 was entered into for supply of 55 MT of dry dates at the rate of USD 630/KG. The appellant filed a Bill of Entry dated 09.08.2019 and submitted commercial invoice, packing list, fumigation certificate issued by Universal Pesticides Trading Co. (LLC), Certificate of Origin dated 16.07.2019 issued by Ajman Chamber of Commerce, UAE, and phytosanitary certificate issued by Plant Protection Organization, UAE. According to the appellant, all these documents declare that the dry dates that were being imported were of UAE Origin. 3. The appellant claims that the containers were examined by the proper officer and after due verification and on being satisfied that the declaration made by the appellant was true and correct, the goods were assessed to duty and the goods were given out of charge on payment of duty. The appellant, thereafter, sold the said consignment to buyers. 4. However, a show cause notice dated 04.12.2020 was issued to the appellant alleging that dry dates imported by the appellant were of Pakistan origin based on the Export Declaration and the container tracking report submitted by the freight forwarder. T....
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....d the impugned goods liable for confiscation, has rendered himself liable for penalty under section 112(a)(ii)/114A of the Act, ibid. 10.2 From the perusal of the records and evidence gathered in the case, it appears that the importer colluded with his supplier and obtained country of origin certificate no. 472646/7/19/123007 dated 18.07.2019 [RUD-8] issued by Ajman Chamber of Commerce on strength of false documents. Therefore, it appears that the importer, despite being aware of the correct country of origin of the goods, submitted incorrect documents regarding country of origin of the imported goods. Therefore, it appears that the importer had mis-declared the country origin of the imported goods with intent to mislead the customs authorities and evade payment of correct customs duty. Thus, the importer appears to have rendered himself liable to penalty under Section 114 AA of the Act, ibid." (emphasis supplied) 5. The appellant was, therefore, called upon to show cause as to why : - "11. xxxxxxxxxx (i) the subject goods should not be held to have been originated from Islamic Republic of Pakistan and the declared classification of the goods ....
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.... goods laden in the impugned container no. CRXU9978083 and GESU5284244 had not originated in UAE. I further find that the Export declaration DEC No. 303-04693320-19 dated 22.07.2019 issued by Federal Customs Authorities of Dubai shows that the impugned goods bore the Country of origin name as 'PK', which is a code for Islamic Republic of Pakistan. In addition to the above, the quantity of goods mentioned in the said Export Declaration was 56100 Kgs., which is exactly the same as the quantity of the impugned goods mentioned in Bill of Lading No. CCLDXBMUN18226 dated 28.07.2019, thereby validating the fact that the goods have originated in Pakistan. 15.4 I further find that the container tracking details submitted by M/s Sarang Maritime Logistics Private Limited, Freight Forwarded of the importer and container tracking details submitted by the CONCOR on 03.12.2020 indicates that the said container moved from KARACHI, PAKISTAN to MUNDRA, INDIA via JEBEL ALI. Further, Export Declaration no. DEC No. 303-04693320-19 dated 22.07.2019 indicates that the goods laden in container no. CRXU9978083 and GESU5284244 originated in Islamic Republic of Pakistan and the same were tr....
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....imported goods. I further find that the importer had mis-declared the country origin of the imported goods with intent to mislead the customs authorities and evade payment of correct customs duty. I find that the importer violated provisions of Section 17(1) and Section 46 of the Customs Act, 1962 not filling truthful declarations in bill of entry and proper self-assessment under section 46(4). Therefore, I find that for the aforesaid acts of suppression of facts and submission of incorrect documents committed by the importer, the extended period of five years for demand of Customs duty under section (4) of Section 28 of the Customs Act, 1962 is invokable in this case. Therefore, I hold that the importer is liable to pay the differential Customs duty of Rs. 56,67,728/- by invoking extended period of 5 years under Section 28(4) of the Customs Act, 1962." (emphasis supplied) 11. It is this order dated 10.09.2021 that has been assailed in this appeal. 12. Shri Tarun Gulati, learned senior counsel appearing for the appellant assisted by Shri Prem Ranjan Kumar and Ms. Shruti made the following submissions: (i) No reliance can be placed on the alleged Exp....
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....the imported goods originated from Pakistan; (iii) The certificate of origin was rightly discarded by the Principal Commissioner; (iv) The extended period of limitation was correctly invoked; and (v) Penalties under sections 114 A and 114 AA of the Customs Act have been correctly levied. 14. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 15. The issue that arises for consideration in this appeal is as to whether the dry dates imported by the appellant through invoice dated 15.07.2019 and Bill of Entry dated 19.08.2019 originated from UAE or from Pakistan. To support its claim that the goods originated from UAE, the appellant had submitted commercial invoice, packing list, fumigation certificate issued by Universal Pesticides Trading Company, the certificate of origin dated 16.07.2019 issued by Ajman Chamber of Commerce, UAE and the phytosanitary certificate issued by Plant Protection Organization, UAE. 16. The department, however, placed reliance upon two documents namely the Export Declaration provided by the freight forwarder and the ....
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....mation, or within such extended period as the Principal Commissioner of Customs or the Commissioner of Customs may allow: Provided that where a timeline to finalize verification is prescribed in the respective Rules of Origin, the proper officer shall finalize the verification within such timeline. (7) The proper officer may deny claim of preferential rate of duty without further verification where: (a) The verification Authority fails to respond to verification request within prescribed timelines; (b) The verification Authority does not provide the requested information in the manner as provided in this rule read with the Rules of Origin; or (c) The information and documents furnished by the Verification Authority and available on record provide sufficient evidence to prove that goods do not meet the origin criteria prescribed in the respective Rules of Origin." (emphasis supplied) 19. There is nothing on the record to suggest that such verification as contemplated under the 2020 Rules was carried out with the concerned UAE Authorities to verify the genuineness and correctness of the certificate of origin. 20. This issue ....
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.... the above concrete proofs regarding country of origin, we hold that said goods were of UAE origin. We find that in the case of Challissari Kirana Merchant (supra), the Hon‟ble Kerala High Court has held that for determination of country of origin due weightage should be given on the country of origin certificate in case of any suspicion. In the case of Yellamma Da Sappa vs. Commissioner of Customs, Bangalore [2000 (120) E.L.T. 67 (Kar.)], the Hon‟ble Karnataka High Court has observed as follows:- "9. A valid certificate has been issued and the said certificate, even as on date, has not been withdrawn or cancelled for any alleged violation of the condition by the appellant. Unless the said certificate is cancelled, the Customs Authorities cannot impose customs duty. The seizure of the equipment is only a consequential act that would follow the cancellation of the certificate issued in favour of the Appellant. So long as the certificate is not cancelled, the respondents could not, in our opinion, have initiated seizure proceedings in the case on hand. Petitioner-appellant was sent only a questionnaire and the said questionnaire has been answered by the appellant....
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....ocument C & F value was declared to USD 44247/- while in the invoice it was USD64827/-. Consignee and consignor names were also mentioned incorrectly. It was an unsigned photocopy of document. The Export Declaration submitted in this case, reflects figures which do not match with other documents and also does not reflect name of shipping line. Hence this document which is full of errors cannot be considered to be an evidence to prove country of origin. In the case of Commissioner of Customs (Imports), Mumbai vs. Ganpati Overseas [2023 (386) E.L.T. 802 (S.C.)], the Apex Court has held that unattested photocopy would not have any evidentiary value. We also find support from the decision of the Hon'ble Supreme Court in the case of East Punjab Traders [1997 (89) E.L.T. 11 (S.C.)] where it has been held that in case documents are not obtained from the respective customs formation, reliance cannot be placed on such documents. In view of the above, we find reliance on the said document to prove country of origin by the Original Authority is not proper. 23. We further find that Adjudicating Authority has referred expression "FZ Transit Out" mentioned in the Export Declaration rece....
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....not be considered as an evidence to prove the country of origin. 24. The facts of the present case are similar to the facts of Omega Packwell decided by the Tribunal. In the present case, the Principal Commissioner has not recorded a finding that the country of origin certificate produced by the appellant was forged and all that has been stated is that it was obtained by the appellant in collusion with the exporter by submitting incorrect documents. This finding is based purely on conjectures and surmises. As noticed above, a detailed procedure has been provided in the 2020 Rules for examining the genuineness of the country of origin certificate and if the customs authorities had any doubts, the same could have been cleared only by the UAE Authority that issued the country of origin certificate. Whether it was based on authentic documents or not certainly could not have been examined by the customs authorities as they had no documents before them. The appellant had also submitted fumigation certificate issued by Universal Pesticides Trading Co. (LLC) and the phytosanitary certificate issued by Plant Protection Organization, UAE. These two certificates also showed that the countr....