TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 691
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.... with applicable rate of interest under section 28AA of the Customs Act. However, the Principal Commissioner has dropped the demand of differential duty pertaining to the remaining thirty seven Bills of Entry for the reason that the extended period of limitation could not have been invoked under section 28(4) of the Customs Act in respect of these thirty seven Bills of Entry. The Principal Commissioner has also dropped the proposal made in the show cause notice for confiscation of the goods and imposition of penalty. 2. The appellant is engaged in the business of imports of goods and filed forty eight Bills of Entry for clearance of Cocoa Powder Low Fat imported from Malaysia during the period 17.07.2014 to 03.05.2018. As Malaysia and India are member countries of ASEAN and had preferential trade agreement, the appellant claimed exemption of customs under the Exemption Notification. The appellant, therefore, claimed nil rate of basic customs duty against the "country of origin" certificate in all the said Bills of Entry. 3. A show cause notice dated 30.01.2019 was issued to the appellant in respect of forty eight Bills of Entry alleging that the appellant had wrongly claimed the ....
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.... it appeared that the regional value content would only be in the region of 13-17 percent as against the minimum qualifying value of thirty five percent. The show cause notices mentions that for the said import pertaining to 2011 and 2012, the matter was taken up for verification with the High Commission of Malaysia by a letter dated 10.01.2014. In reply, a letter dated 18.03.2014 was sent to the department that the Ministry of International Trade and Industry Malaysia completed the verification visit to both the factories to verify the information regarding raw material used in the production of cocoa powder for export to India and based on the verification visit and internal investigation of both the factories, the raw material used in the production of finished goods fulfilled the thirty five percent regional value content under the Free Trade Agreement, but the cost structure was not provided due to data privacy. 5. The Principal Commissioner recorded the following findings in the impugned order: "29. From the above sequence of events as detailed in Para 28 above when seen in light of provisions detailed in Para 27 above, I find that the prescribed procedure for verification....
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....te of the year 2011-12 that verification was carried out. Thus, that report could not have been taken into consideration for doubting the country of origin certificate in respect of the eleven Bills of Entry submitted by the appellant in 2017-18 and in support of this contention learned consultant placed reliance upon a Division Bench decision of the Tribunal in Symphony International vs. C.C. Mundra Customs Appeal No. 10168 of 2021 decided on 23.01.2024. 9. Shri Rajesh Singh, learned authorized representative appearing for the department, however, supported the impugned order and submitted that it does not call for any interference in this appeal as detailed reasons have been given in the order. Learned authorized representative also submitted that : (i) The investigation by the Directorate of Revenue Intelligence revealed that the regional value content in the imported cocoa powder was only between 13- 17% which is much below the required threshold contained in the Exemption Notification; and (ii) To support this contention learned consultant placed reliance upon decisions of the Tribunal in Alfa Traders vs. Commissioner of Customs, Cochin 2007 (217) E.L.T. 437 (Tri.-Bang.) ....
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.... of Entry was submitted for import of Cocoa powder on 12.02.2018 and the benefit of the nil rate of basic customs duty under the Exemption Notification was availed. Subsequently, a show cause notice dated 30.05.2019 was issued to the said appellant challenging the "country of origin" certificate on the ground that the regional value content in the COCOA Beans from Ghana Origin was between 13-17 percent as against the minimum qualifying value of thirty five percent. The same letter dated 10.01.2014 sent by the department to the Malaysian Government for verification of the "country of origin" certificate was relied upon, as also the reply dated 18.03.2014 submitted by the Malaysian Government. The judgment of the Tribunal in Alfa Traders and Surya Light was also considered by the Tribunal. The Tribunal held that no attempt was made by the department to get the "country of origin" certificates issued in respect of the Bill of Entry dated 12.02.2018 verified from the Malaysian Government. The communication dated 18.03.2014 sent by the department referred in the show cause notice, therefore, could not be relied upon. The Tribunal held that the appellant had provided documentary evidence....
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....or denial of exemption despite claim of 47% value addition have been initiated even without attempting to verify the documentary evidence by way of the Certificate of Origin by the designated authority issued under the agreement. We find that this is nothing but attempt to make case on the basis of assumptions and presumptions even without as much as verification having been attempted to be made by the authorities. The same is therefore, not maintainable. Department has been provided a documentary evidence by way of a stipulated certificate from the designated authority under the agreement. On production of such agreement which is in the nature of the documentary evidence, the onus to prove fakeness of its content or otherwise clearly shifts on the department. Unlike, the course of action adopted in respect of other importers who made imports in the Year-2014, the department has not even attempted to do verification with Government of Malaysia and has proceeded in the instant case, on the basis of following assumptions and presumptions without rebuttal of the documentary evidence procured and produced by the appellant:- That in absence of cost data in relation to imports in 2014,....
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....which has relied upon various decisions of High Courts and Supreme Courts in holding that without check of authenticity of the Certificate of Origin issued by Malay Chamber of Commerce Malaysia, Certificate of Origin and consequent benefit cannot be denied, equally holds good in the present instance." ( emphasis supplied ) 14. The aforesaid decision of the Tribunal in Symphony International was subsequently followed by the Tribunal in Kiara Ingredients INC vs. C.C. - Mundra Customs Appeal No. 10025 of 2022 decided on 14.02.2024. The relevant paragraph of the decision is reproduced below: "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 same getting verified from Malaysian authorities. It is clear the cost data of Malaysian manufacturer having been provided or having been denied is a matter between Gov....