TaxTMI 
TaxTMI 
2025 (7) TMI 421
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....der Section 111 (m) of the Customs Act, 1962 for misdeclaring the description of the goods in respect of country of origin and for violation of Food Safety, and Standards (Packing and Labelling) Regulation, 2011. Since the goods are not available for confiscation and disposed by auction sale. I order to impose Redemption Fine of Rs 1,00 000/. (Rupees One Lakh only) under section 125 (1) of the Customs Act,1962 (iii) I impose a penalty of Rs.1,00,000/- (Rupees One Lakh only) under the provisions of Section 112 (a) and/ 112 (b) of the Customs Act, 1962 upon M/s Navarshi Overseas, 30/05, Tiwari Gali, Rawat Para, Agra (Noticee no 1) (through its proprietor Noticee no 2). (iv) I impose a penalty of Rs.1,00,000/- (Rupees One Lakh only) under the provisions of Section 114AA of the Customs Act, 1962 upon Shri Neeraj Gupta Noticee no.2) for-submitting false "country of origin" certificate of dry dates in order to wrongly avail the benefit of lower Customs Duty and cause a loss to exchequer (v) I impose a penalty of Rs.1,00,000/- (Rupees One Lakh only) under the provisions of Section ....
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....ar (Noticee 2). The observations made in this order should be construed as any decision in their case. 2.1 The office of Directorate of Revenue Intelligence, Lucknow Zonal Unit received specific intelligence that some importers namely M/s Navarshi Overseas, 30/05, Tiwari Gali, Rawat Para, Agra, have connived with some overseas persons and imported Pakistan origin Dry dates, through Bills of Entry filed at ICD Dadri, evading Customs duty by mis-declaring the country of origin of the said goods. 2.2 A Customs duty @ 200% was imposed on all goods originating or exported from the Islamic Republic of Pakistan, vide Notification No. 05/2019-Cus dated 16.02.2019, and as per the said Notification, the said item has to be classified under CTH 98060000 These importers have thus attempted to evade higher rate of Customs duty by mis-declaring country of origin of the said Pakistan origin Dry dates as UAE and classifying them under CTH 0808041030, where Customs duty is @ 20% instead of its correct CTH 98060000, attracting Customs duty @ 200%. 2.3 On the basis of above said specific intelligence, an enquiry on the a....
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....ontainer.' During the course of examination, it was noticed that a similar type of mode of packing were adopted by all three importers and each bag of containers was found stapled with a slip containing details of exporter & importer gross weight, net weight country of origin and FSSAI No., which can easily be separated from such packaging bags. Hence, it was found that the provisions of Food Safety and Standards (Packing and Labelling) Regulation, 2011 were not followed properly on the packaging bags of the said goods. 2.7 During the course of investigation, statements under Section 108 of the Customs Act, 1962 of various person including, Shri Neeraj Gupta, Proprietor of M/s Navarshi Overseas, 30/05, Tiwari Gali, Rawat Para, Agra and Shri Pankaj Khanna, elder brother of Shri Pratul Khanna Proprietor M/s Venkat Traders was recorded on 03.10.2019. They admitted that the Dry dates lying at ICD, Dadri were of Pakistan origin, which were supplied by Shri Kush Agarwal of M/s GVO Global FZC by re-routing the same through Dubai, UAE ; that Shri Kush Agarwal managed & arranged all the import d....
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....ion 114AA ibid for the reasons discussed in the show cause notice. 2.10 The show cause notices have been adjudicated as per the impugned order. 2.11 Aggrieved appellants have filed these appeals. As stated in para 1.3 no appeal has been filed by the importer M/s Navarshi Overseas (Noticee 1) and its proprietor Shri Neeraj Kumar (Noticee 2). 3.1 I have heard Shri Kamaljeet Singh Advocate for the appellants and Shri Santosh Kumar, Authorized representative for the revenue. 3.2 Arguing for his client, Shri Kamaljeet Singh, submitted that: • the dispute in the present case is regarding the country of origin of the dry dates exported by the appellant and imported by the above three importers. • the goods are duly supported/covered by "country of origin certificate issued by the Ajman Chamber of Commerce which is the competent designated authority of the Govt. of UAE for issuing 'country of origin' certificates. The said certificate of country of origin is bar coded, yet it authenticity has not been verified by the Department. • Since the 'country of origin' certificate has been issued ....
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....ration. Hence the finding in the impugned order is not sustainable 3.3 Authorized representative reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 Before we proceed to consider the issue we would record the background in which the above notices have been issued culminating into the impugned order. This background has been recorded by the Hon'ble Supreme Court in the case G S Chatha Rice Mills [2020 (374) E.L.T. 289 (S.C.)] "A. The aftermath of Pulwama 2. A terrorist attack took place at Pulwama on 14 February, 2019. On 16 February, 2019, the Union Government issued a notification under Section 8A of the Customs Tariff Act, 1975. The notification introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The precise time at which the notification was uploaded on the e-Gazette was 20:46:58 hours. ...." The goods in question namely dry dates otherwise attracted duty at rate of 30% if imported from any place other than....
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....ue i.e. a sum total of US$30681.60 (which is in complete contradiction to version of Neeraj Gupta that he was offered 2% commission by Anil Agarwal for clearing this consignment on the IEC of his firm i.e. M/s. Navarshi Overseas) 6.8.3 As per the clause mentioned in the agreement dated 12.09.2019 "the buyer shall pay extra 2% on the invoice value i.e. US$ 30080 to the seller as the consideration amount for the consignment. The value after 2% consideration would be US$ 30681. 60" 6.8.4 This clearly contradicts his averments in his statement and clearly shows his complicity in the illegal import of dry dates 6.8.5 Further he has categorically admitted in his statement that "On being asked Anil Agarwal informed him (Neeraj Gupta) the country of origin of said Dry dates to be "Pakistan". His excuse that he is not direct importer and not versed with Customs regulation is also not tenable, as he in his statement has stated that two consignments of Dry dates in October and November 2018 were imported by his firm. &n....
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.... goods with sole intention to evade duty. I find that the acts of omission and commission of the said importer M/s Navarshi Overseas, in relation to goods imported vide Bill of Entry No 5025038 dated 23.09.2019 have rendered the said goods liable to confiscation under Section 111 (m). 6.8.9 Thus find that the Seized Chopped (Dry) dates totally valued at Rs.22,40,132/- (Rupees Twenty Two Lakhs Forty Thousand One Hundred and Thirty Two Only) are liable for confiscation under Section 111 (m) of the Customs Act, 1962 for willfully mis-declaring the description of the goods in respect of country of origin and for violation of Food Safety and Standards (Packing and Labeling) Regulation, 2011 with respect to the aforesaid import consignments as discussed hereinabove 6.8.10 Hence I hold that M/s Navarshi Overseas (through its proprietor Noticee no.2) is liable for penalty under Section 114AA of the Customs Act, 1962 112 (a) and/or 112 (b) in as much as they mis-declared the description of the goods in respect of country of origin, submitted a concocted manipulated COO Certificate of UAE origin d....
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.... bidding' the learned Director General failed to adhere to the established principle which governs this aspect and the basic requirements before it could be inferred that there was a meeting of mind. The law in this regard is explicitly clear 6.9.6 However, no explanation is given in his defence reply regarding the contradiction in his statement with the factual position of signed agreement with Pratul Khanna, Proprietor of M/s. Venkat Traders for purchase of two containers (on High seas sale basis) for a consideration of 2% of the Invoice value in addition to Invoice value. This clearly shows his complicity in the act of deliberate and willful mis-declaration of Country of Origin as UAE as against Pakistan origin goods, to evade payment of Customs duty at higher rate applicable on goods of Pakistani Origin 6.9.7 Thus, he owes full responsibility and connivance in the import of said consignments of dry dates. It is pertinent to mention here that he has categorically admitted in his statement that he was duly informed by Anil Agarwal that country of origin of said Dry dates is Pakistan ....
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....p; 6.10.4 Therefore, Shri Pratul Khanna is liable to penalty under Section 112(a) and/ (b) of the Customs Act, 1962 for omission and commissions on his part which have rendered the goods liable for confiscation as discussed hereinabove 6.11.1 Shri Pankaj Khanna (Noticee no.4) is the caretaker M/s Venkat Traders, Kanpur. it has been alleged that on previous occasions also, he was involved in import of Pakistan origin dry dates into India via UAE by misdeclaring the country of origin on the basis of concocted Certificate of Origin in connivance with Anil Agarwal, Kush Agarwal, Chandan Chaudhary and Manoranjan Kumar. 6.11.2 In his defence reply he has submitted that he had refused to accept delivery of the dry dates at the behest of Shri Kush Agarwal and Shri Anil Agarwal which is evidence in itself to validate statement of Shri Pankaj Khanna. However he has not provided any proof in support of his contention. He has also questioned the reliability of report of M/s Atul Rajasthan Palm Ltd. but it is not in dispute that dry dates were not of UAE origin and were of Pakistan Origin, The said poin....
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....en refuted by him in his defence reply. Thus, the allegation that he aided and abetted Neeraj Gupta to import the consignment of Dry dates of Pakistan origin vide Bill of Entry No. 5025038 dated 23.09.2019 and provided assistance to evade payment of higher rate of Customs duty @ 200% imposed vide Notification No. 05/2019-Cus dated 16.02.2019 on Pakistan origin goods by Mis-declaring '"Country of origin' of the said goods as "UAE" in the said concocted Certificate of origin (CO0) stands against him 6.11.9 Therefore, Shri Pankaj Khanna is liable to penalty under Section 112(a) and/(b) of the Customs Act, 1962 for omission and commissions on his part which have rendered the goods liable for confiscation as discussed hereinabove 6.12.1 Shri Chandan Chaudhary is Import Manager of M/s. SS Mommy International Pvt. Ltd, Greater Noida (Noticee no.5). It has been alleged that he also appeared to be actively involved in illegal import of Dry dates by filing the Bill of Entry No.5025038 dated 23.09.2019 pertaining to import of Dry dates of Pakistan origin in two containers containing 47 MT of Dry dates ....
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....rd holder of CHA / CB in import of impugned consignments which have been held liable for confiscation. Hence, I find that Shri Chandan Chaudhary is liable to penalty under Section 112(a) and/ (b) of the Customs Act, 1962 6.12.6 However, Shri Chandan Chaudhary is an employee and acted for the CHA. It has been held in several cases that personal penalty cannot be imposed on employees he was merely following directions. 2007 (211) ELT 460 (Trib); 2009 (241) ELT 467 (Trib), 2007 (213) ELT 710 (Trib). Therefore, he is liable to a token penalty under Section 112(a) of the Customs Act, 1962 6.12.7 I find that he has submitted the import documents received from Anil Agrawal to the Customs Authority for assessment and he acted as per duty and responsibility of an employee of CHA/CB. Therefore, I hold that he is not liable to a penalty under Section 114AA of the Customs Act, 1962. There is no evidence in the entire show cause notice to prove that he alongwith Manoranjan Kumar was instrumental to mis-declare the country of origin of dry dates or use any false and incorrect material viz. Declaration, statement ....
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.... 6.13.5 Shri Manoranjan Kumar and the CHA firm solicited work of import of dates. That is not an offence; it is seeking business. Further, all the statements above indicate that only on the basis of documents supplied by Shri Anil Agarwal and Kush Agarwal, Bill of Entry was filed by Shri Manoranjan Kumar and Shri Chandan Chaudhary of the CHA firm. This fling of Bill of Entry, itself is no offence Thus, from the above it is evident that Shri Manoranjan Kumar was instrumental in aiding and abetting the importer to mis-declare the country of origin of the goods. As CHA, I find that Shri Manoranjan Kumar is liable to penalty under Section 112(a) and/112(b) cf the Customs Act, 1962 for filing Bill of Entry on a managed COO Certificate 6.13.6 I do not find any evidence that he has used incorrect, false material or knowingly or intentionally signed any document, Hon'ble Tribunal in the case of Rajan Arora 2017 (352) ELT 37 (Trib-Del) held that clear evidence is necessary to arrive at the conclusion that CHA by their specific acts or omission of any act, abetted illegal importation of offending goods. Penalty....
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....the owner of M/s. GVO Global FZC, UAE. It has been alleged that he appeared to be the mastermind in re-routing of the said impugned goods i.e. 'Dry dates of Pakistan origin' through UAE. He appeared to be the person who is supplying "'Dry dates of Pakistan origin' through his firm i.e. M/S GVO Global FZC, UAE to the Indian importers and he managed & arranged. All the import documents, especially the certificate of origin (COO) issued by the concerned UAE authorities relating to import of said Dry dates of Pakistan origin 6.14.2 I find that Shri Pankaj Khanna in his statement dated 03.10.2019 had deposed that after the hike in duty on import from Pakistan., importing Dry dates from Pakistan became absolutely unviable. He managed to contact Mr. Kush Agarwal, who reportedly was looking for traders of Dry dates in Delhi and other areas. In a meeting held in office i.e. D. 122, Bulandshahar Industrial Area, Ghaziabad, Kush Agarwal informed him that he has started a business of export of Dry dates from UAE to India and to this effect he will also provide Certificate of Origin' of such Dry dates to be of UA....
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....rically stated that Bill of Entry No. 5025038 dated 23.09.2019 was filed by him on the directions and on the basis of documents provided by Anil Agarwal 6.15.4 Further, he is found to be aware that the said Dry dates are of Pakistan origin as Shri Kush Agarwal, the mastermind behind this illegal import had already explained to him the whole modus operandi of re-routing the said impugned goods through UAE and its final import to India 6.15.5 He in his statement dated 06.12 20 19 has stated that he was aware of the preparation of the said concocted import documents with respect to the import consignments of Dry dates of Pakistan origin re-routed into India through Dubai UAE. Further Shri Neeraj Gupta in his statement dated 03.10.2019 has deposed that he visited the office of M/s. Golden Valley Overseas on 23.09.2019 and met there Shri Anil Agarwal (also known as Mamaji) who offered that two containers of Dry dates in the name of M/s. Venkat Traders are offshore and if he clears (said two containers n the name of his firm he would get a commission @ 2Rs. /Kg. to which he (Neeraj Gupta agree....
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....liable for confiscation 6.15.11 I find that Shri Anil Agarwal is also liable to penalty under Section 114AA of the Customs Act, 1962 in as much as he knowingly & intentionally had been instrumental in arranging and providing the concocted import documents to M/s Mommy International Pvt. Ltd. for its use before the Customs Authority for assessment of Bill of Entry with the intention to evade payment of higher rate of Customs duty." 4.4 I find that the entire case of the revenue rests on the following evidences: (i) Sample examination report given by M/s Atul Rajasthan Date Palms Limited. (ii) Statements of certain related/ unrelated persons with the imports made. (iii) Non compliance with FSSAI Regulations, 2011 (iv) FZ Transit Out Customs declarations which were filed with Dubai Customs, Federal Customs Authority, UAE for transit of containers containing Dry Dates and obtained from the Shipping Lines. 4.5 The case has been made out against the appellants is with regards to concocted Certificate of Origin, certifying that the impugned goods sought to cleared on the Bill of Entry No 5025038 dated 23.09.2....
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.... 47%. The Free Trade Agreement stands incorporated in the Customs Tariff vide Notification No. 46/2011-Cust., dated 01.06.2011 available to impugned product i.e. Natural Cocoa Power originating from Malaysia. The differential duty of Rs. 6,44,233/- was demanded by the department, denying benefit on the ground that in another investigation taken up by DRI in respect of certificate of origin pertaining to another party in the year 2014, Cocoa Beans were suspected to be derived from Ghana and not Malaysia by that importer. The matter was taken up by director (ICD) of CBEC, New Delhi with the High Commissioner of Malaysia in Delhi vide letter F. No. 456/12/2013-Customs-V dated 10.01.2014 for verification. The party involved in that case of the year 2014, was M/s. Morde Foods Pvt. Ltd., and the exporters were two Malaysian companies. In response to the letter of Director (ICD), CBIC, New Delhi, the Ministry of International Traders Industry (MITI) vide letter dated 18.03.2014 informed CBEC that they had conducted internal investigation by visiting two factories of M/s. J B Cocoa and M/s. Guan Chong Cocoa who were suppliers in that case and both had confirmed that value addition of 35% w....
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....by the department in the matter of M/s. SURYA LIGHT Vs. COMMISSIONER OF CUSTOMS, BANGALOR as reported in 2008 (226) E.L.T 74 (Tri. - Bangalore) and 2007 (217) E.L.T. 437 reported in ALFA TRADERS Versus COMMISSIONER OF CUSTOMS, COCHIN are clearly distinguishable, as in case of former invoice was faked and in the latter judicial notice of no production in country of origin of the relevant agricultural product was taken and percentage of value addition in concerned country was never in dispute. 9. In view of the forgoing, in the present case in the face of certificate of origin having been produced and no verification process having been conducted before issuance of show cause notice, the demand of duty cannot be sustained. We also find that the appellant has correctly relied from the decision of M/s. R.S INDUSTRIES (ROLLING MILLS) LTD. Versus COMMISSIONER OF C.EX., JAIPUT-I as report in 2018 (359) E.L.T. 698 (Tri. - De.) to emphasize that the certificate issued by the competent authority of exporting country is to be given weightage. Similarly, the decision of Hemang Resources Ltd V/S Commissioner of Customs (Prev.) Jamnagar of this bench as reported in 2022 (381) ELT ....
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....pection of goods only. In the case of Krishna Das [2014(303) ELT 548 (T)] following has been observed: "7. Apart from so called expert opinion of Shri Anand Agarwal, there is virtually no evidence on record to reflect that betel nut in question were of foreign origin. The appellants have taken a categorical stand that betel nuts are grown in abundance in Jalpaiguri and Coochbehar in West Bengal and in the entire States of Assam, Arunachal Pradesh, Meghalaya, Tripura, Manipur, etc. Admittedly the consignment was booked from Guwahati to Delhi. The appellants have rightly contended that distance between Guwahati to Delhi is around 2000 kms whereas distance from Nepal to Delhi-I 1500 kms. As such nobody would smuggle the goods from Nepal boarder to Guwahati which is around 900 kms away and then transport the goods from Guwahati to Delhi after crossing State barriers at places in between. 8. Apart from the fact that there is no evidence on record to show that the foreign origin of the goods, I also note that the betel nuts are neither notified under Chapter IV of the Customs Act nor under Section 123 of the Act. As such, the onus to prove that the same have been smuggl....
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....foreign origin of the betel nuts. The documents produced by the respondents indicated that the goods in question were purchased from local markets, and in support of the purchases they produced the market receipts which has not been doubted by the Revenue Authorities themselves at any stage of the proceedings. The report of the ARDF has also been held to be not reliable inasmuch as it could not be shown with any degree of certainty that the origin of the betel nuts could be established by testing in a laboratory, as is clear by the answer to the RTI query given by Directorate of Arecanut and Spice Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala." MAA KAMAKHYA TRADER [2024 (389) E.L.T. 185 (All.) ] 26. Third, no material has been shown to us to reach conclusion different from that reached by the Meghalaya High Court in C.C. (Preventive), NER Region, Shillong [2022 (382) E.L.T. 592] wherein it was observed as below :- "4. The Division Bench of the Tribunal recordedthe finding that the confiscated betel nut is non-notified goods and therefore, burden to prove the fact of smuggling lies on the department and same has not b....
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....e them satisfy that the said goods originate in the country shown in the certificate which is UAE in the present case. It shows that the said certificate was issued after proper verification of origin of goods. Authenticity of the said certificate was never challenged by way of any enquiry from the exporting country. We further notice that phyotsanitary certificate which was issued by National Plant Protection Organization of exporting country also indicates country of origin UAE. No evidence was brought out to infer that country of origin shown in the said phytosanitary certificate was incorrect. Bags of dry dates were found, during physical verification, carrying slips on which country of origin was mentioned as UAE. Mere suspicion is not enough to discard aforesaid documents. Rule 6 of the Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 provide as under: Rule 6. Verification request .- 1. The proper officer may, during the course of customs clearance or thereafter, request for verification of certificate of origin from Verification Authority where: a. there is a doubt regarding genuineness or authenticit....
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.... assessed under section 18 of the Act and the preferential duty claimed. 5. All requests for verification under this rule shall be made through a nodal office as designated by the Board. 6. Where the information requested in this rule is received within the prescribed timeline, the proper officer shall conclude the verification within forty five days of receipt of the information, 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 ....
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....hat the Certificate of country of origin cannot be discarded without checking its authenticity and benefit if any cannot be denied. In view of the above settled legal position, we hold that goods, in question, were of UAE origin and confiscation of goods on the ground of mis-declaration of country of origin is not sustainable. 18. The Adjudicating Authority has also held that noncompliance of FSSAI Regulations, 2011 in respect of dry dates imported by the Appellants established as slips tagged with bags showing mandatory particulars were not securely affixed. Circular No.9/2015-Cus dated 31.03.2015 issued by CBIC provides that out of charge order by Customs would be given only after receipt of Release Order from FSSAI [para-3(v) of the Circular]. We find that import of food articles is regulated as per provisions of FSSAI (Import) Regulations, 2017. In accordance with the provisions of Regulation 6(10) of FSSAI (Import) Regulations, 2017, the Authorized FSSAI officer shall reject the consignment not complying with the provisions of Labeling and Packaging Regulations, 2011 at the visual inspection and no sample shall be drawn from the consignment. Simil....
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....earance will not be allowed. In para 4.4 of chapter 8 of the Manual, 'General check' includes verification of product to ensure compliance of labeling requirement also. Examining officers did not express any discrepancy regarding non- compliance of the FSSAI Regulations, 2011. It proves beyond doubt that there was no non-compliance of the FSSAI Regulations, 2011 in the present case. The confiscation order on account of non-compliance of FSSAI Regulations, 2011 is, therefore, invalid. 20. In the present case, confiscation of goods has been ordered under section 111(m) of the Act, 1962 on the ground that country of origin of goods has been misdeclared. Dry dates imported, in the instant case, were ordered by the Adjudicating Authority to be of origin of Pakistan. From the records we find that dry dates were shipped by the exporter at Jebel Ali port in UAE, in invoice country of origin was shown as UAE and certificate of country of origin was also with the consignment where country of origin was declared to be UAE. During physical examination of goods, it was found that the country of origin was described as UAE on the packages. Allegation of mis-declaration of country ....
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.... cannot be reopened now for valuation by taking the shelter of misdeclaration of country of origin as USA when goods were marked as Australia, subsequent to the clearance by the proper officer having assessed & cleared the goods after examination & not having taken cognizance of the said mis-declaration of country of origin. There was & is no mis-declaration of the import. Proceedings of confiscation & duty demands therefore cannot be upheld & are to be set aside." The decision has also been upheld by the Hon'ble Supreme Court as per report [2015 (323) E.L.T. 450 (S.C.)]. The Apex Court has observed that Tribunal setting aside confiscation and redemption fine on the ground that declarations regarding country of origin were to be made by supplier/exporter and that assessment once finalized cannot be re-opened for valuation in guise of mis-declaration of country of origin. In view of above judicial decisions, it is abundantly clear that declaration made in the bill of entry as per invoice and other import document cannot be treated as misdeclaration when there is no proof of involvement of the importer. It is further submitted that there is also no violation of the provisions of the ....
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....vailable on its website www.ardp.co.in. It is not any scientific laboratory having expertise in identification of origin of dry dates. It is further noticed that experience and qualification of the person inspecting sample was not disclosed. In absence of such declaration, it is very difficult to recognize him as an expert. The opinion has been issued only on the basis of visual inspection without carrying out any chemical analysis. Differences between dry dates of UAE origin and of other areas have not been discussed. As per the provisions Section 45 of the Indian Evidence Act, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identify handwriting or finger impression, the opinion upon these points of persons especially skilled in such foreign law, science, or art in questions as to identify of handwriting or finger impressions are relevant facts. A fact is something cognizable by he senses such as sight or hearing, whereas opinion involves a mental operation. Country of origin of any goods is a complex matter and it cannot be decided by way of visual inspection of goods only. "In the case of Swastic Mechatronics Pvt. Ltd. [2014(314....
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.... 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 received from shipping line to prove that the goods were imported from third country to Dubai for export to India. In para-15....
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....nil Kumar Agarwal Manager, M/s Padam Parmeshwari Ventures Pvt. Ghaziabad, where Shri Kush Agarwal, owner of M/s GVO Global FZC UAE, is one of directors was also relied upon by the Adjudicating Authority on the contention that he is nephew of Shri Kush Agarwal. It is an undoubted fact that Shri Anil Kumar Agarwal has no locus standi in the business of supplier company i.e., GVO Global. From his statement, it is evident that he was directed by Shri Kush Agarwal at times to deliver letters received from GVO Global to importers who purchased goods from the company of Shri Kush Agarwal. There is no evidence in any form like electronic chat, documents etc. from which it can be proved that Shri Anil Agarwal was involved in decision making activities of GVO Global FZC. He has not accepted in his statement that he discussed and convinced Indian importers to purchase goods from GVO Global, which were of actually Pakistan origin. It is settled law that statement of any person cannot be basis for proving an offence if it is not supported by any other cogent evidence. In the case of UOI Vs. Kisan Ratan Singh [2020 (372) E.L.T. 714 (Bom.)], Hon'ble High Court has held that various Courts have ke....
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....stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded." In view of the above facts and settled legal position it is crystal clear that retracted statement cannot be used to prove any offence. 27. The Adjudicating Authority has imposed penalty on M/s Omega Packwell Pvt. Ltd., under Section 112(a) of the Act, 1962. Penalty under the said Section is imposable on a person when he is involved in any action which makes goods liable to confiscation. In the present case, goods were not liable to confiscation as discussed in foregoing paras. Hence, no penalty is imposable on M/s Omega Packwell Pvt. Ltd. 28. As regards imposition of penalty on Shri Yogesh Gupta under Section 114AA of the Act....
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....icate of Origin". However as we have earlier observed that there is no credible evidence produced to show that the "Certificate of Origin" issue by the designated authorities in UAE was manipulated, in fact no enquiries have been made in this regard from the authorities in UAE. We also note that nothing has been placed on record to show that he has by his act of omission and commission contravened any provision of Customs Act, 1962. He has supplied the goods - dry dates, for being imported into India by the said importers in normal course of business. Even if it is assumed and admitted that he has manipulated the documents to declare country of origin as UAE, then also the offence which has been committed in UAE, action would lie against him under the law of that country. 4.13 Further penalties have been imposed on the appellants under Section 112 (a) and/ (b). Is that possible, both the sections operate in different realm. Penalty under Section 112 (a) can be imposed, even when there is no intent (mensrea) of the person in committing the act of commission or omission leading confiscation of goods in terms of Section 111 of Customs Act, 1962. Section 112 (b) requires inten....