TaxTMI 
TaxTMI 
2025 (8) TMI 1237
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.... rate of duty in terms of Notification No.46/2011-Cus dt.01.06.2011 read with ASEAN and the Republic of India Rules, 2009 notified under Notification No.189/2009-Cus9NT) dt.31.12.2009 and Notification No.53/2011-Cus dt.01.07.2011 read with Preferential Trade Agreement between the Governments of the Republic of India and Malaysia Rules, 2011 notified under Notification No.43/2011-Cus(NT) dt.01.07.2011 on the basis of the Country of Origin Certificates issued by the Ministry of International Trade and Industry, Malaysia (MITI) certifying in each of the Certificates that the Regional Value Content (RVC) in the cocoa powder exported to the appellants was more than 35% of the FOB value. The customs authorities examined the goods, verified the Country of Origin Certificates and allowed the clearance with concessional assessment. Thereafter, SCN was issued proposing to deny the concessional assessment under Notification No.46/2011 and 53/2011 alleging that the RVC in the cocoa powder imported by the appellants is less than 35% of the FOB value prescribed for eligibility for concessional assessment. The SCN was issued placing reliance on the Board's letter dt.07.05.2014. The SCN further de....
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.... b) Minakshi Exports Vs CC, Jodhpur [2018 (359) ELT 689 (Tri-Del)] 5. Learned Counsel further submitted that in the case of any doubt about the correctness of the Country of Origin certificates produced by the appellants claiming clearance with concessional assessment/total exemption as per the relevant Rules, the department must verify the correctness of the Country of Origin certificates for each Bill of Entry. The outcome of the verification done for earlier imports cannot be the basis to allow the benefit or to deny the benefit of the Notification. In support of this contention, they have relied on judgment of Hon'ble Madras High Court in the case of M/s Unik Trades Vs DRI, Chennai [2019 (367) ELT 353 (Mad.)]. 6. As far as operational certification procedure is concerned, learned Counsel submitted that in the impugned OIOs, the adjudicating authority stated that Article 9 to 10 provides for method of verification of certificate of origin and after consideration, he came to the conclusion that the procedure prescribed is independent of each other. This contention is not correct on the ground that as per Article 9, the importing party may request the certificate issuing aut....
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.... of these judgments, the order passed confiscating the goods is not tenable. As regards penalty imposed under section 114A, he submitted that it may be imposed when larger period under section 28(4) was invoked by reason of collusion or any willful misstatement or suppression of facts as envisaged under the section. But in the present case, these ingredients are not found. Accordingly, penalty cannot be imposed. He further submitted that impugned OIOs passed by the adjudicating authority denying the benefit of notification without considering submissions made by the importer and the judgments cited, is a nonspeaking order and is therefore, liable to be set aisde. 10. On the other hand, learned AR has reiterated the findings of the adjudicating authority in the impugned OIOs. 11. Heard both sides and perused the records. 12. The issue involved in all the appeals is common and therefore, these appeals are being taken up together for the purpose of disposal. 13. We find that the benefit of notification issued under FTA was denied by the Customs only on the ground that there was an intelligence that the condition of value addition of 35% in respect of cocoa powder supplied ....
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....l Order No.10975/2024 dt. 01.05.2024] c) M/s Goldsmith Food Products Vs CC, Mundra [2024 (5) TMI 144 - CESTAT Ahmedabad] 16. We also find that similar issue was the subject matter of adjudication before the Principal Commissioner of Customs (NS-I) and where vide OIO dt.31.07.2017, inter alia, he held that M/s Morde Foods Pvt Ltd were entitled for benefit under Notification No.153/2009-Cus dt.31.12.2009 as superseded by Notification No.46/2011-Cus dt.01.06.2011 read with Notification No.189/2009-Cus (NT). In that case also reliance by the Department was placed on certain verifications done by Malaysian Authority against JB Cocoa Sdn. Bhd. and Guaan Chong Cocoa Manufacturer Sdn. Bhd., and they confirmed that cocoa powder imported from them had RVC greater than 35%. The relevant para of the Order, supra, is cited below: "21.6 In view of the above mentioned evidences and facts, I find that there is not sufficient ground to reject the certificates of country of origin issued by statutory authorities/foreign governments as conclusive, more so when the exporting country's statutory authority has given their reverification for the RVC of the goods under dispute. After ....
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....lating the RVC and concluding it to be less than required 35% for the concession benefit available in notification, the DRI taken into account various inputs like labour, packing and other manufacturing cost, and the profit margin and relied upon various mechanism including prospectus available on the supplier company's website and articles available on internet and concluded the cost as 17% only. Also the production data of Malaysia for Cocoa is used to infer the availability of raw material cocoa available to supplier for manufacture of cocoa powder and butter. I believe that the said inference is loaded with so many infirmities as the website information is reflecting only the manufacturing cost for the production of the impugned goods where as raw material need not be part as raw material cost is separately mentioned in same website as 87.2%, 83% & 83% for the year 2009, 2010 & 2011 respectively. In view of the reverification of the COO certificate and the factory visits conducted by MITI and in light of detailed verification report submitted by the independent auditor appointed by MITI for the said purpose, I find that the issue of RVC is reasonably settled in exporter/supplie....