TaxTMI 
TaxTMI 
2025 (5) TMI 1045
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the First Schedule to the Customs Tariff Act, 1975 when imported into India from a country listed in Appendix to the notification including Islamic Republic of Afghanistan, subject to the conditions that the importer proves to the satisfaction of the Customs authorities, in accordance with the Rules for determination of origin of Goods under the Agreement on South Asian Free Trade Area (SAFTA), 2006, published vide Notification No 75/2006- Customs, (NT) dated 30.06.2006 (hereinafter referred to as "SAFTA Rules"). 1.2 It is the case of the department that the Appellant has fraudulently imported subject goods of US Origin by mis-declaring the country of origin as Afghanistan in order to wrongly avail the benefit of the Exemption Notification. The allegation was made by the department, relying upon the following: a. Paper Slips/paper Tags stitched/ attached on Bags or found inside the bags containing subject goods mentioned country of origin as USA in 3 out of more than 1600 bags. b. The IPPC office vide email dated 25.12.2019 and 01.01.2020 informed that Phyto Sanitary Certificates (PSC) submitted by the Appellant at the time of import were completely fake. 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er of Commerce and Industry. 2.2 It was submitted that the exemption benefit cannot be denied in the presence of a valid COO issued by the competent authority. Reliance in this regard is placed on the decision of Scientific Suppliers Vs. C.C., Mundra, 2024 (2) TMI 741- CESTAT Ahmedabad, wherein it was held as under: "6. Considered. We find that in the instant case, the certificate was duly got verified through the Government to Government process and Malaysian authorities have not doubted the issuance of genuine certificate of origin nor its contents. However, the department in the absence of cost data has placed the whole burden of proof on the appellants, despite documentary evidence coming to the fore by way of certificate of origin and getting verified by the Malaysian authority. It is clear that the cost data of Malaysian manufacturer having been provided or having been denied is a matter between Government to Government (G to G) and cannot be held against the appellants. In case the agreement between Malaysian Government and Indian Government had some provision for providing cost data of the supplier company, then such condition could have been taken up with the M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s were not of Afghanistan origin. These alleged stickers are also of different names. 2.6 It was submitted that when all the conditions specified under SAFTA Rules are satisfied by the Appellant and the benefit of preferential tariff treatment is available on the import of goods from SAFTA countries is proved, in that case the exemption benefit can not be denied merely on the allegation that random tags/stickers were found in the imported goods. 2.7 Reliance in this regard was placed on the decision of the Commissioner of Customs, Hyderabad v. Riddi Siddhi Bullions Ltd, 2017 (355) ELT 585 (Tri-Hyd), wherein it was held that when all documents as required under exemption notification, provided and accepted as genuine documents certified and issued by Government authorities, the officer cannot deny the benefit of the exemption notification. ii. Phyto Sanitary Certificate is not relevant in the present case. 2.8 Further, in the entire show cause notice, the allegation levelled against the Appellant is that of forging the phyto certificate. However, the phyto certificate is not a determining factor for deciding the origin of the goods. 2.9 Phyto certificate is a do....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4 (8) TMI 266 - CESTAT Ahmedabad • M/s. Malas Fruit Products Vs. CC, Mundra, 2024 (5) TMI 282- CESTAT Ahmedabad • Kanpur Edibles Private Ltd. Vs. CC (Preventive), Kolkata, 2024 (5) TMI 576- CESTAT Ahmedabad. 2.14 Further, customs duty demand in respect of BOE no. 3997006 dated 09.07.2019 is not sustainable as Appellants have already relinquished their title of goods. 2.15 Section 28DA of the Finance Act, 2020, dated 27.03.2020, (effective from July 2020) imposes an obligation on the importer to possess sufficient information on Regional Value Content (RVC) and Product-specific criteria specified in the rules of origin under the FTAs. In the present case, majority of the imports were made before June 2020 when there was no obligation on the importer to verify any additional details, apart from submitting the COO. Reliance is placed on the decision of Bullion and Jewellers Association v. UOI- 2016 (335) E.L.T. 639 (Del.), wherein it was held that if imports are made prior to the introduction of Section 28DA, in that case a valid COO at the time of import is sufficient and such import cannot be called into question at a later stage. 2.16 There was no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....try No. 3385021 dated 25.05.2019 from the same supplier. The subject goods imported vide Bill of Entry No 3997006 dated 09.07.2019 were later placed under seizure vide Seizure Memo dated 26.07.2019. The officers of DRI withdrew 2 mobile phones used by Shri Suresh Bhatt on reasonable belief that the said mobile phones could contain important data relevant to the inquiry. 3.3 Statements of Shri Aakash Nair, Senior Executive of M/s. Winwin Maritime Ltd (Authorised Agent for Shipping Line M/s. Allied Container Line, Karachi) was recorded on 21.10.2019 under Section 108 of the Customs Act, 1962. M/s. Winwin undertook clearances of their containers at Mundra / Kandla ports. After seeing Bills of Lading Nos. ACL/KHI/MUN-1447/19 dated 23.05 2019 and ACL/KHI/MUN-1965/19 dated 27.06 2019 from the documents produced by him and the Phytosanitary Certificates No. 160042 & 1600423 both dated 14.05.2019 and 202493 & 202494 both dated 09.05.2019 and certificate No. 202981 dated 13.05.2019 issued by Plant Protection and Quarantine Department, Ministry of Agriculture, Irrigation and Livestock, Islamic Republic of Afghanistan, he stated that it appeared that the Containers were loaded from Karachi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....19.15 hrs and 21.46 hrs) was replaced with Phytosanitary Certificate No. 202981 dated 13.05.2019 at the time of filing Bill of Entry no. 3385021 dated 25.05.2019, he stated that he was unable to recall as to how this happened. However, he stated that those were the documents which were finally forwarded through courier for filing Bill of Entry and the documents received earlier had not been cross-checked. 3.6 Statements of Shri Ravi Patel, Proprietor of M/s. Uma Trading Company, a wholesale trader of Cashew Nuts, Cumin Seeds, Black Pepper and Walnuts (in shell) etc. was recorded under Section 108 of the Customs Act, 1962 wherein he stated that he came into contact with Shri Suresh Bhatt of M/s. Kesar Spices in June 2019 through some common traders in the market. That Mr. Bhatt had offered to sell some quantity of old California Inshell Walnuts' at a lower rate who also provided some samples. He had purchased around 10000 kgs of Walnuts from Shri Suresh Bhatt on invoices issued by M/s. Kesar Spices in June 2019 and payments were made by RTGS. Thereafter, Shri Suresh Bhatt had informed that one of his known traders M/s V H Traders, Deesa was willing to sell 'California Ins....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the specimen signatures received from the Board. 3.10 In view of the above, it appeared that the importer in active connivance with Pakistan based trader, so called Shri Ashmat, imported walnuts of USA origin based on manipulated documents to evade Customs Duty by way of arranging fabricated Phytosanitary Certificates and COO Certificates for US origin goods by showing them as originating in Afghanistan to wrongly claim the benefit of Notification No. 99/2011-Cus dated 09.11.2011. 3.11 The Adjudicating Authority found that on the basis of specific inputs regarding wrong claim of Not No. 99/2011-Cus dated 09.11 2011, examination of goods (Walnut in shell) covered under Bill of Entry 3997006 dated 09.07.2019 was conducted under panchnama wherein some incriminating documents in the form of paper slips/paper tags stitched/attached to bags or found inside the bags of walnuts clearly indicating that the goods are of USA origin. The importer, vide letter dated 27.07.2019 voluntarily submitted a Demand Draft for Rs. 87,05,435/- towards payment of duty, interest and penalty in respect of late filing of Bill of Entry in acceptance of their mistake committed regarding mis-declaration of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....€¢ 2014 (309) ELT 641 - C.C. Bangalore vs Shipla Trading Co. 4. As per liberty granted to both sides, the Counsel for the appellant in rejoinder filed synopsis dated 8th April, 2025, further urging as follows:- 4.1 During the course of hearing, Ld. Department representative raised issue pertaining to non compliance of Article 18 of operational certification procedures for south Asian free trade area (SAFTA) rules of origin because evidence of transport of goods from Afghanistan to India are not on record. In this regard, there is no dispute that goods are transported from Afghanistan to India through Pakistan. Appellants has submitted documents showing transport of goods from Afghanistan to India. Further, following documents are submitted as evidence in addition to bill of landing submitted by the appellant: a. Bill of export filed at customs house, Chaman, Afghanistan which was assessed by customs officer, at customs house, Chaman, Afghanistan. Said bill of export show truck number, container number also through which goods were transported. b. Corresponding examination report issued by the customs officer of Pakistan and also customs officer of Afghanistan for the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....certified or shipment "California" walnuts goods and product of USA. The Department on the basis of such writing and having reasons to believe started investigation and took up the matter with Afghanistan authorities who certified correctness of the certificate of origin. During investigation, a letter of Shri Suresh Bhatt, Proprietor was also relied upon which indicated that the goods were of USA origin which were imported in Karachi from USA but were being shown as having country of origin as Afghanistan. The same was denied at various fora. Again the statement of Aakash Nair, of M/s. Winwin Maritime Ltd was recorded. He was shown Phytosanitary Certificates covering the consignment issued by Plant Protection and Quarantine Department, Ministry of Agriculture, Irrigation and Livestock, Islamic Republic of Afghanistan from which, it appears that the container were loaded in Karachi port. The Phytosanitary Certificates did not mention the container numbers. He also indicated that the container was stuffed from the Badaruddin Yard and loaded from Karachi port. M/s. Allied Container, Karachi however informed that the goods in transit were from Karachi and initially loaded at Afghanist....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e party. We are not in agreement with this proposition, as show cause notice is nothing more than a statement of all allegations which puts to notice, the party about the evidence which the department has in its possession. It is cardinal principle of evidentiary jurisprudence that, the 'one who alleges needs to prove'. By simply alleging in the show cause notice there is no shifting of the burden to the other side. Ei incumbit probatio qui dicit, non qui negat (Latin) is the guiding principle to emphasize that the burden of proof lies on the one who asserts, and not on the one who denies. This principle is foundation of both civil and common law system. We find that the importer had claimed concessional rate on the importer goods under SAFTA Agreement and related notification issued under Customs Tariff Act; As per notification, document required for claiming concessional rate of duty was the certificate of origin which was duly produced and in normal course, should have made the importer entitled to concessional rate of duty. We find that slips indicating 'California origin' were found only in three bags out of 1650 bags of Walnuts, which cannot be the basis to say that the whole....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Thus, it is clear that the COO filed by the appellant was duly endorsed by the issuing authority. Therefore, neither the certificate can be taken to be denied by the relevant Government authorities nor can the origin of the goods be taken to be of some other country. The DRI, it appears approached the Quarantine Authority in India, who in turn wrote to the Quarantine Authorities in Afghanistan and got a report in relation to Phytosanitary Certificate which indicated that the same were interpolated or tampered with in relation to columns specially relating to type of treatment given to the consignment. It is clear that origin from Afghanistan is not specifically denied by the authorities there and department's case that consignment moved from USA to Dubai and from there to Karachi port and then to India lacks credence as there is otherwise overwhelming documentary evidence available including examination reports before Karachi Customs and Afghanistan Customs, transit certificate and COO, which have not been denied or proved to be incorrect by the departmental authorities. Coming to the case law as has developed in relation to exemption benefit vis-à-vis the certificate of ori....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in three wallnut bags out of total 1650 bags, are also of different names and different in contents. It will be preposterous to hold whole consignment on the basis of these tag/stickers as of any other origin despite so much evidence having been produced which has not been proved to be incorrect by the department. Some claim of Pythosanitory Certificate having been manipulated/tampered cannot be taken as proof of goods not having originated from Afghanistan. Such evidence could have at the most allowed department to allege ITC violation but cannot be used to deny exemption notification benefit. We also find that the earlier consignment was duly cleared by the department and other is stated to be not cleared till date and might have become Junk and expired food item. In any case, the fumigation as per notification is permitted to be done in either the country of export or the country of import. Such allegation has been made without testing the veracity of the third agency and document collected by it without examining the official by the adjudicating authority or of the authority in the Afghanistan can have co-relation with origin of the country, being Afghanistan only. We find tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ported 'Walnuts Inshell' and we are in process to pay the remaining dues. We also request you to kindly release our goods as same are of perishable nature and it may possible that insects/rodents may destroy our goods and due to that value may also decrease. As we have paid the Differential duty, interest and penalty in respect of goods seized at Mundra CFS, Mundra port, Mandra vide Panchnama dated 10/07/2019 and looking into the perishable nature of goods, it is onbe arerequested to issue an order to releasefur goods at earliest. Thanking You Sir. For, KESAR SPICES Super Brott. Propriator 24/7/19 116, Madhukant-II, Opp. Municipal Hospital, Bardolpura Ahmedabad - 380 004. Ph. 079-65445588 E-mail : [email protected], [email protected] Document 2 DIRECTORATE OF REVENUE INTELLIGENCE AHMEDABAD ZONAL UNIT Unit No. 15, Magnet Corporato Park, Near Sola Flyover, S. G. Highway, Thaltej, Ahmedabad - 380054 (Tel No: 079-26884002/26884000; BY SPEED POST/FAX: 011-23093760 F. No: DRI/AZU/CI/ENQ-83(INT-26/2019)/2019 Fax-079-29705078/29705080; @-mall- [email protected]) Date: 27/01/2021 REMINDER To: The Director (International Customs Division), Central Board of Indire....