TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 765
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....es Sixty Six Lakhs Fifteen Thousand Four Hundred and Ninety Four Only) under Section 111 (m) of the Customs Act, 1962 for mis-declaring 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 3,00 000/. (Rupees Three Lakh only) under section 125 (1) of the Customs Act, 1962 (iii) I impose a penalty of Rs. 2,50,000/- (Rupees two lakhs fifty thousand only) under the provisions of Section 112 (a) and/ 112 (b) of the Customs Act, 1962 upon M/s. Venkat Traders 54/34 Nayaganj, Kanpur-208001 (Noticee no 1) (through its proprietor Noticee no 2). (iv) I impose a penalty of Rs. 2,00,000/- (Rupees two lakhs only) under provisions of Section 112 (a) and/ 112(b) of the Customs Act, 1962 and a penalty of Rs. 1,00,000/- (Rupees one lakh only) under the provisions of Section 114AA of the Customs Act, 1962 upon Shri Pratul Khanna. Proprietor of M/s. Venkat Traders 54/34 Nayaganj, Kanpur-208001. (Noticee no. 2) (v) I impose a penalty of Rs. 2,00,000/- (Rupees t....
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....s 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 above subject was initiated, and goods imported under Bill of Entry No 5036474 dated 24.09.2019 were put on hold for examination. The B/E was filed in the name of M/s. Venkat Traders 54/34 Nayaganj, Kanpur-208001 for import clearance of Dry Chopped dates in Four Containers bearing number TSAU5600139, GESU6075341, GESU6374255 & GESU5912130 along with other relevant documents including Commercial invoice no. GVO/ EXP/ 073 dated 01.09.2019, Bill of Lading MAX/DXB/....
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....ugh Dubai, UAE; that Shri Kush Agarwal managed & arranged all the import documents, especially the Certificate of Origin (CO0) issued by the concerned UAE authorities relating to the said import consignments of Dry dates of Pakistan origin. 2.8 Therefore, on reasonable belief that ⮚ the impugned goods i.e. Dry dates of Pakistan origin were attempted to be imported, by mis-declaring country of origin as UAE of the said impugned goods with the intention to evade payment of higher rate of Customs duty @ 200% as per Notification No. 05/2019-Cus dated 16.02.2019; ⮚ there was also a non-compliance of Food Safety and Standards (Packing and Labelling) Regulation, 2011 with respect to the said import consignments of Dry dates, ⮚ the said goods were found liable for confiscation under Section 111 of the Customs Act, 1962 and accordingly, the impugned goods was seized under Section 110 of the Customs Act, 1962. 2.9 After completion of investigations Show Cause Notices were issued to the importers and concerned persons: A. Importer and its proprietor and caretaker were called upon to show cause as to why: (i) Seized Dry da....
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.... origin' is not genuine. No enquiry has been made by the Revenue from the Ajman Chamber of Commerce, UAE or from the Govt. of UAE to ascertain whether or not the 'certificate of origin' is genuine. In the absence of any enquiry, the allegation that the goods (dry dates) have not originated in UAE is not sustainable ⮚ No reliance can be placed on the so-called expert opinion given by M/s. Atul Rajasthan Date Palms Ltd., Jodhpur for reasons as follows: • they have not mentioned in their test report "whether they have a lab to test country of origin of dates". • they have not mentioned what tests were done by them to ascertain country of origin. • they have given only on basis of physical appearance. The opinion was given within one day from date of receipt of letter of DRI by them. • they are not accredited by the Govt, to carry out any tests on food items. The FSSAI has notified 183 NABL Accredited Laboratories as mentioned in M.F. (D.R.) Instruction no. 1/2020-Cus dated 12.02.2020 where the Customs Department can get testing of food products done. The name of M/S. Atul Rajasthan Date Palms Ltd.is not in....
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....tarted routing the said goods though of Pakistan origin from various countries in Middle East, by declaring the goods to be of that origin, investigations and enquiries were undertaken by the revenue authority and all the consignment pending clearance were detained and seized under reasonable belief that the country of origin certificate have been manipulated to claim the benefit of lower rate of duty. Subsequently the show cause notices as detailed earlier have been issued to the importers and other concerned which are subject matter of these appeals. As indicated earlier we are in present case concerned with the order in original by which the goods imported by M/s Navarshi Overseas (Noticee 1) and its proprietor Shri Neeraj Kumar (Noticee 2) have been confiscated and allowed to released against redemption fine of Rs 1,00,000/-. Penalty have been imposed on the importers and other concerned with the said imported goods, including Shri Kush Agarwal, who is said to have exported the said goods from UAE. 4.3 Findings recorded in the impugned order against the appellants are reproduced below: 6.1 I have carefully considered the Show Cause Notice, facts of the case and writ....
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....rates. Therefore, the said report of M/s Atul Rajasthan Date Palms Limited clearly indicates that the said consignments of Dry dates are clearly not of UAE origin as claimed in the "Certificate of origin" filed by M/s Venkat Traders along with import documents. Instead, the said report categorically indicates that the said consignments of Dry dates are of Pakistan origin 6.3.4 That during the course of investigation, the shipping line of the importer i.e. M/s. Mexicon Shipping Agencies, New Delhi was requested vide this office letter dated 11.11.2019 to provide Export Declaration Form and other relevant documents filed by the supplier of dry dates pertaining to Bill of Lading No MAX/DXB/0937/192C dated 08.09.2019 (corresponding to Bill of Entry no. 5036474 dated 24.09 2019 imported by M/s Venkat Traders). In response to this, M/s Mexicon Shipping Agencies vide e-mail dated 1411.2019 submitted copy of Export (Customs) Declaration, received from their Dubai agents. 6.3.5 On going through the said Export (Customs) Declaration, it s noticed that this is a FZ Transit Out Customs Declaration filed on 05.09.2019 with Dubai Customs, Federal Customs Authority, UAE for tran....
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....he value of goods." 6.3.8 Considering the above customs procedures pertaining to Dubai Customs (UAE), regarding export of goods out of free zones, it appeared that FZ Transit Out declaration is applicable in those cases only, where a Free Zone Company (i.e. FZ Company) imports goods from a third country for its subsequent export to another country. The said provisions imply that the containers in respect of which FZ Transit Out declarations have been filed, originate from a third country and thereafter, move to the place of transit i.e. Dubai from where the containers finally move to the destination country. 6.3.9 Further, in the FZ Transit Out Customs Declarations filed with Dubai Customs, Federal Customs Authority, UAE on 05.09.2019, the Origin is found mentioned as 'PK'. On going through the website of International Organization for Standardization i.e. www.iso.org it is noticed that "PK" is the ISO alpha-2 code of Pakistan. The ISO country codes are internationally recognized codes that designate every country and most of the dependent areas a two-letter combination or a three-letter combination. It is like an acronym that stands for a country or a Sta....
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....edge that these cannot hold water in the imminent judicial scrutiny. The department deliberately called/procured inputs from private entities like M/s. Mexicon Shipping, Nehru Place, Delhi as Agents for Maxicon Container Line PTE Ltd. (Singapore)' who vide e-mail dated 14.11.2019 submitted copy of Export (Customs) Declaration. Whereas all the necessary and relevant information was available with them (submitted by the importer and issued by Governmental agencies) which was verifiable through Government channels. But for unknown reasons the available channels were not used, and instead favorable inputs were procured from private parties. 6.4.2 That the 'Certificate of Origin' issued by 'Ajman Chamber of Commerce' is an unquestionable document obtained by exporter based in UAE. It is sufficient proof of origin being issued by the chamber after inspecting the material and verifying all the documents. That the noticee also satisfied itself based on documents furnished by exporter which were issued by governmental agencies and there was no occasion to doubt that once it was examined and certified by UAE government. In any case, the importer has no control wh....
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....raise a presumption in its favour with regard to existence of the fact sought to be proved. One of them is that the prosecution or the department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth and as Prof. Brett felicitously put it-"all exactness is a fake". The law does not require the prosecution prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as probabilities of the case. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1774) 1 Cowp 63 at p. 65 "According to the proof which it was in the power of one side to prove and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially with....
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....kistan origin but on the basis of documents. imports of the said Dry dates had been shown as supplied from UAE. Further Shri Anil Kumar Agarwal in his statement dated 06.12.2019 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. 6.6.1 Another allegation is that during the course of examination, it was found that each bag in both containers was tagged 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. No marking was found on other side of bags. 6.6.2 That Point no. 2.2.1(4) of Chapter 2 of the Food Safety and Standards (Packing and Labeling) Regulation, 2011 issued by FSSAI provides that "Label in pre-packaged foods shall be applied in such a manner that they will not become separated from the container." 6.6.3 Hence it appeared that the provisions of Food Safety and Standards (Packing and Labeling) Regulation, 2011 were not followed properly on the packaging of bags of the said goods. 6.6....
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....ations, 2011. Section 111(m) of the Customs Act, 1962 reads as "any goods which do not correspond in respect of value or in any other particular with the entry made under this Act, goods are liable to confiscation". Section 46 of the Customs Act lays down the provision that the importer of any goods, other than goods intended for transit or transshipment shall make an entry thereof, by presenting to the proper officer a Bill of Entry for home consumption or warehousing Section 46 (4A) reads as under: The importer who presents a bill of entry shall ensure the following, namely: (a) The accuracy and completeness of the information given therein: (b) The authenticity and- validity of any document supporting it; and (c) Compliance with the restriction or prohibition, if any relating to the goods under this Act or under any other law for the time being in force. Therefore, Section 111(m) read with Section 46 of the Customs Act provides for confiscation of the improperly imported goods where its value or any other particulars do not correspond with entry made under this Act. 1 find that to avoid payment of higher rate of duty, the said importe....
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....e of the said dry dates 6.8.4 In view of the above, it has been alleged that Ms Venkat Traders had contravened the provisions of Sections 12 & 17 of the Customs Act. 1962 read with Notification No. OS/2019-Cus dated 16.02.2019 in as much as they attempted to evade payment of higher rate of Customs duty @ 200% levied vide Notification No OS/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 (COO). Further, the provisions of Food Safety and Standards (Packing and Labeling) Regulation, 2011 were also contravened by the party as discussed in the foregoing paras. For the said violations, the seized Dry dates covered under Bill of Entry No. 5036474 dated 24.09.19 n Containers No. TSAU5600139 GESU6075341. GESU6374255 & CESU5912130 (declared assessable value Rs. 66,15,494/-) are liable to confiscation under Section 111 (m) of the Customs Act, 1962. 6.8.5 That by mis-declaring the country of origin of the Pakistan origin Dry dates imported by them the importer Ms Venkat Traders sought to evade customs duty amounting to Rs 1,83,64,611/- (Rupees One Crore Eighty T....
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....on of Food Safety and Standards (Packing and Labeling) Regulation 2011 which rendered the aforesaid import consignments liable for confiscation 6.9.1 Now I discuss role of the co-noticees in the instant case. Shri Pratul Khanna (Noticee no. 2) is the proprietor of M/s Venkat Traders, Kanpur. 6.9.2 Shri Pratul Khanna (Noticee no. 2) is the proprietor of M/s Venkat Traders, Kanpur. It has been alleged that he was aware that M/s. Venkat Traders imported Dry dates from M/s GVO Global FZO UAE with Customs clearance done by Ms. SS Mommy international Pvt. Ltd. For giving genuine look to illegal import of Dry dates he not only signed the contract between M/s. Venkat Traders and M/s GVO Global FZC (UAE) but also signed documents related to Customs clearance of the imported dry dates under the guidance of his brother Pankaj Khanna 6.9.3 Bill of Entry No 5036474 dated 24 09.19 in respect of four Containers No TSAU5600139 GESU6075341 GESU6374255 & GESU5912130 was filed on behalf of M/s. Venkat traders with declared assessable value Rs 66,15,494/- before the Customs authority at ICD Dadri. With the concocted import documents issued from the concerned UAE authorities,....
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....a UAE by mis-declaring the country of origin on the basis of concocted Certificate of Origin in connivance with Anil Agarwal, Kush Agarwal, Chandan Chaudhary and Manoranjan Kumar. 6.10.2 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 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. The said points have already been discussed in the foregoing paras. 6.10.3 In fact he was an active person in control of M/s Venkat Traders, Kanpur. It has been alleged that on this occasion too, he in connivance with Kush Agarwal, Anil Agarwal, Chandan Chaudhary managed to effect High seas sale, of two containers of dry dates to Ms. Navarshi Oversea. To effect instant High seas sale he was in close contact with Chandan Chaudhary and Kush Agarwal, which is evident from the whatsapp chat between him and Chandan Chaudhary. 6.10.4 In his statement Shri Pankaj Khanna stated that "consignment imported in the last wee....
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....efore, 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 6.10.10 I find that he is also liable to penalty under Section 114AA of the Customs Act, 1962 in as much as he knowingly & intentionally submitted the concocted import documents including fake country of origin certificate before the Customs Authority for assessment at lower rate of duty and causing loss to the Govt. Exchequer. 6.11.1 Shri Chandan Chaudhary (Noticee no. 4) 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. 5036474 dated 24.09.2019 pertaining to import of Dry dates of Pakistan origin in two containers containing 112 MT of Dry dates at ICD, Dadri re-routed into India via UAE. 6.11.2 Shri Chandan Chaudhary in his statement dated 30.09.2019 has categorically stated that Bill of Entry No. 5036474 dated 24.09.2019 was filed by him on the directions and on the bas....
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....to filing of Bill of Entry and confiscation of goods as held above. 6.11.6 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 as 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),(b) of the Customs Act, 1962 6.11.7 I find that he has submitted the import documents received from Shri Anil Agarwal 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 Shri Manoranjan Kumar was instrumental in aiding and abetting the importer to mis-declare the country of origin of dry dates or use any false and incorrect material viz. Declaration, statement or document. Thus, a lenient view is warranted while imposing penalty under Section 112 ibid 6.12.1 Shri Manoranjan Kumar (Noticee no. 5) is Marketing Manager....
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....s liable to penalty under Section 112(a) and 112(b) of the Customs Act, 1962. 6.12.6 I do not find any evidence that Shri Manoranjan Kumar 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 imposed on grounds that appellants had filed bills of entry without getting required documents - mere filing of bill of entry without knowledge or a role in importation of cargo not sufficient for penalty. 6.12.7 Hon'ble Tribunal in the case of New Amar Goods Carriers 2012 (276) ELT 389 (T-Del) held that in absence of evidence regarding knowledge of appellant about the contents of cargo, penalty cannot be imposed. Hon'ble Tribunal in the case of Lohia Travels & Cargo 2015 (330) ELT 689 (T) held that when there is no evidence to establish that the appellant had prior knowledge of the goods imported and also when there is no evidence to establish any wrongful intent on the part of appellant ....
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....e and not on any scientific methodology stating that the country area of origin is Indian Subcontinent is non-admissible. That the said consignment of dates is covered by a certificate of origin issued by the Ajnan Chamber of Commerce which is the competent authority to issue 'certificate of origin' and is regulated by the Govt. of UAE. Once certificate of origin has been issued by the competent designated authority of the Govt of the exporting country, No scope for any doubt can exist. That the slip containing details of goods a per FSSAI were found duly attached with the bags. Whether they can be easily separated is a hypothetical question as they had not been found separated. In any case, had there been a violation under FSSAI, then FSSAI authorities would have booked a case for the same. That no reliance can be placed on the said statement of Sh. Chandan Chaudhary as it is not based on any evidence on record and is merely heresay evidence. 6.13.3 That though in his statements Sh. Pankaj Khanna has stated that based on his experience, he can say that there is no difference between the dry dates imported from Pakistan prior to Feb 2019 and the dry dates imported ....
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....ngly & intentionally connived with Shri Pankaj Khanna of M/s Venkat Traders to effect High seas sale of the subject consignment of Dry dates and was instrumental in arranging, managing & providing the concocted import documents including Country of origin Certificate for its submission before the Customs Authority for assessment with the intention to evade payment of higher rate of Customs duty 6 15.1 Shri Anil Kumar Aganwal (Noticee no. 7) is Manager & Authorised representative M/s Padam Parmeshwari Ventures Pvt. Ltd. D-122. Bulandshahar Industrial Area, Ghaziabad. He was found to be assisting Shri Kush Agarwal as he himself provided the said import documents to Shri Chandan Choudhary, Import Manager of M/s SS Mommy International Pvt. Ltd. for import clearances of the said impugned goods, which were received by him from Shri Kush Agarwal, the owner of Ms GVO Global FZC. UAE 6.15.2 In his statement dated 04.11.2019 he has admitted that on the directions of Shri Kush Agarwal he looked after the import related work of M/s Venkat Traders, Kanpur and other importers for the import clearances of Dry dates supplied by M/s GVO Global, UAE 6.15.3 Shri Chandan Cho....
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....ed by him from Shri Kush Agarwal, the owner of M/s GVO Global FZC UAE. Thus he is liable to penalty under Section 112(a) and/ (b) of the Customs Act, 1962 for omission and commissions on his part as discussed above which have rendered the goods liable for confiscation 6.15.10 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 connived with Shri Kush Agarwal and had been instrumental in arranging and providing the concocted import documents including fake country of origin certificate to M/s Mommy International Pvt. Ltd. for its submission before the Customs Authority for assessment with the intention to evade payment of higher rate of Customs duty 6.16.1 I find that Noticees have contended that the show cause notice under reference issued by the AddI. Director, DRI merits to be set aside as per judgments of various courts in cases of Cannon India Pvt. Ltd. V. CC 2021 (376) ELT 3 (SC) and others 6.16.2 In this regard, .......... 6.17.1 Shri Kush Agarwal (Noticee 6) has requested for cross-examination of the expert who has tendered the opinion regardi....
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.... held that the cross-examination of accused persons was not necessary when their statements were not false and the case against them had been made on the basis of their own statements. The relevant portion of the judgment is as follows; "However, if there was any coercion or fraud by the officials then the appellants could have immediately reconciled from the statements on the very next day. In the reply to the show cause notice, the appellants themselves have contended that they do not suggest that the department had intentionally foisted a false case against them. Therefore, when there is no allegation of false case having been made out against them and that there is no individual resilement by the witnesses at the earliest point of time, therefore, we have to come to the conclusion that the statements given by the witnesses are voluntary. As regards the plea of denial of opportunity to cross-examine the witnesses, it has to be stated that the appellants are the accused persons and their statements are not held to be false and that the case against them is on the basis of their own statement and hence the question of calling them for cross-examination does not arise." ....
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....en Thousand Four Hundred and Ninety Four Only) are liable for confiscation under Section 111(m) of the Customs Act. 1962 for mis-declaring the description of the goods in respect of country of origin and for violation of Food Safety and Standards (Packing and Labelling) Regulation, 2011. (ii) Penalty is imposable under Section 112(a) and 112(b) on M/s Venkat Traders (through its proprietor Shri Pratul Khanna), Shri Pratul Khanna, Proprietor of M/s Venkat Traders, Shri Pankaj Khanna Caretaker of M/s Venkat Traders. Shri Chandan Choudhary, import Manager, Ms SS MOMMY International Pvt. Ltd., Shri Manoranian Kumar, Marketing Manager, Ms SS MOMMY International Pvt. Ltd. Shri Kush Agarwal and Shri Anil Agarwal for their active participation in mis-declaration of imported Chopped (Dry) dates rendering the said good liable for confiscation. (iii) Penalty is imposable upon Shri Pratul Khanna, Shri Pankaj Khanna, Shri Kush Agarwal and Shri Anil Agarwal under Section 114AA of the Customs Act, 1962 for submitting false "'country of origin" certificate of dry dates in order to wrongly avail the benefit of lower Customs Duty and thus causing a loss to exchequer. No Penalty....
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.... the other Country as has been held in the following cases: ⮚Pradip Polyfils Pvt. Ltd. [2001(173) E.L.T. 3 (BOM.)] ⮚Khanna Paper Mills Ltd. [2011(273) E.L.T 149 (Trib.-Del.)] ⮚S. Chandra Sekhran [2011 (132) E.L.T 751 (Trib-Chennai)] ⮚ Titan Medical Systems Pvt. Ltd. [2003 (151) E.L.T 254 (S.C)] ⮚Symphony International [Final Order No A/10194/2024 dated 23.01.2024} "8. Considered. It is clear from the factual narrative that, the certificate of origin in the present instance was issued by the designated authority i.e 'Ministry of International Trade and Industry (MITI) Malaysia' which is competent authority to issue such certificate under ASEAN FTA (AIFTA) mentioning the Regional Value content (RVC) to be much higher than stipulated 35% i.e. 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 ....
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....ficate duly verified by the Malaysian authority was presumed to be in genuine even in this case, one of the party being same. Despite much higher claim of 47% CV claim by the appellant in this instance, four years later. ⮚It was also presumed that Malaysian authorities will not be able to get cost data on the manufacturing unit and will simply agree to the percentage on the basis of their own verification of 47%. ⮚That there is no need of any verification and old verification or lack of it holds goods in the Year 2018 also. ⮚That the onus of getting the contents of certificate verified has shifted from Government to Government basis (G to G) to (G to I) basis i.e. Government to importer basis. 8.1 Case law relied upon 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 a....
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....ithout stating any reasons. In the case of Ram Prakash [2003 (161) ELT882(T)] following has been observed "7. The opinion given by Shri Jai Prakash Gupta that the impugned scrap is of foreign origin is not acceptable for the simple reason that he has tendered his opinion without mentioning the reasons to arrive at such a conclusion. The learned Counsel for the appellants had rightly contended that he is not an expert as he has never imported copper scrap. He had himself deposed in his cross-examination that it is difficult to give a definite criteria of assessing imported copper scrap; it can only be assessed by a person dealing in this trade. ..." 4.8 Determining 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 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 e....
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....stified in again relying upon the ARDF Mangalore's report to justify the seizure in question. In fact such an attempt of the respondent authorities would be contemptuous in nature as it is likely to cause harassment to the traders, by not following the judgment of the Court. 13. This Court also finds from Annexure-P/12 that it is a reply of the Directorate of Arecanut & Spices Development, Government of India which clearly provides that no laboratory test have been standardized for tracing the country of origin. Maa Gauri Traders [2019 (368) E.L.T. 913 (All.)] "15. Applying the principles enshrined in the aforesaid decisions to the facts of the case at hand, it is apparent that the CESTAT after considering all the material on record including the orders passed by the authorities below, have given a concurrent finding of fact that the Revenue could not establish the 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 ....
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....g on the same evidences have been considered by us in case of Omega Packwell [Final Order No 70331-70336/2024 dated 07.06.2024] and following was observed: "17. On the issue of country of origin, we find that in all documents viz., invoice, country of origin certificate, phytosanitary certificate etc. country of origin of dry dates in present case was shown UAE. Slips tagged with bags of dry dates were showing country of origin of the goods UAE. No enquiry was conducted by the Department to prove that country of origin certificate duly issued by the Competent Authority of the exporting country was fake. As per the country of origin certificate, the same was issued by Ajman Chamber of commerce after verification of goods. At Sl. No. 12 of the certificate, it has been certified by the Competent Authority of Ajman Chamber of Commerce, UAE that evidences produced before 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 coun....
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....ine as prescribed in the respective trade agreement; or b. in absence of such timeline in the agreement, sixty days from the request having been communicated. 4. Where verification in terms of clause (a) or (b) of sub-rule (1) is initiated during the course of customs clearance of imported goods, a. The preferential tariff treatment of such goods may be suspended till conclusion of the verification; b. The verification Authority shall be informed of reasons for suspension of preferential tariff treatment while making request of verification; and c. The proper officer may, on the request of the importer, provisionally assess and clear the goods, subject to importer furnishing a security amount equal to the difference between the duty provisionally 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 informatio....
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....ken by the respondents. The Director General of Health Services has also not issued any cancellation of certificate as on date. In these circumstances, we are clearly of the view that without withdrawing or cancelling the certificate already issued, the present seizure cannot stand. Therefore we hold that the seizure effected by the respondents is not in accordance with law. The impugned order of the learned Single Judge, in these circumstances, requires to be set aside and accordingly the same is set aside." The Tribunal in the case of Alfakrina Exports vide Final Order No. 11759/2023 dated 23.08.2023(Tri - Ahmd) on the issue of non-acceptability of Country of Origin Certificate for deciding origin of goods held that 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 impor....
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....thority to clear food items relating to compliance of the FSSAI Regulations. 19. It is further observed that the goods imported under the said bill of entry were physically examined by the Inspector (Exam. Shed) and Superintendent (Exam. Shed) before allowing the clearance and the same were found proper. As per para-1 of chapter-3 of the Customs Manual, it is responsibility of the Examining Officer to check import cargo to confirm the nature of goods, valuation and other aspects for ensuring the compliance of restriction. As per para 4.3 of chapter 8 of the Customs Manual, customs during examination shall exercise „general checks‟ and if products are not found to be satisfying requirements, clearance 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 ....
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.....C. (Import), Nhava Sheva [2013 (297) E.L.T. 291 (Tri.-Mum.)], the Tribunal has held that declaration made in bill of entry as per invoice and packing list of overseas supplier does not show any mis-declaration by the importer and goods are not liable to confiscation. The Tribunal in the case of Penshibao Wang P. Ltd. vs. Commissioner of Customs (Seaport-Import), Chennai [2016 (338) E.L.T. 597 (Tri.-Chennai)] has observed that declaration made in the bill of entry as per invoice and other documents does prove mis-declaration by the importer if goods are found different. In the case of Wings Electronics vs. Commissioner of Customs, Mumbai [2006 (205) E.L.T. 1146 (Tri.-Mum.)] the Tribunal has held that "the assessments made 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."....
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....ng line and (iii). statements of Chandan Chaudhary and Anil Kumar Agarwal which were indicating, as per the Adjudicating Authority, that the said goods were of Pakistan origin but the same was mis-declared to be of the origin of UAE. It is found that on the aspect of country of origin of dry dates imported by the Appellants, opinion given by ARDPL, Jodhpur is as follows:- "On opening and upon physical examination the above representative samples, based upon my experience, my opinion regarding country/ area of origin is Indian subcontinent". ARDPL is engaged in production and marketing of tissue culture raised date palm plants with the aim to enhance the economy and ecology of the arid regions of India as per details available 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....
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....on the Export Declaration which was received from the shipping line which was engaged in sea transportation of said dry dates from Dubai to India. In the said Export Declaration country of origin was shown "PK‟ which is short form of Pakistan as per the Department. Export Declaration is filed by the exporter with customs of exporting country. The said document was not procured from the customs Dubai but obtained from shipping line. How the said document is maintained by the shipping line depends upon the shipping line as it was their internal document. It is further observed that in the said document 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 tha....
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....t country of origin was based on hearsay without any evidence. In the case of Laxmi Narayan Udyog (P) Ltd. vs. Commissioner of Customs (Prev.), Kolkata [2017 (348) E.L.T. 496 (Tri.-Kol.)], the Tribunal has held that hearsay evidence cannot be accepted as reliable evidence for deciding issue against the Appellant. The similar view has also been taken by the Tribunal in the case of Chandreswar Prasad vs. Commissioner of Customs, Patna [2016 (340) E.L.T. 590 (Tri.- Kol.)] where it has been held that statements on hearsay basis without any authenticity cannot be a valid evidence. The conclusion drawn by the Adjudicating Authority on the basis of the said statement is not supported by legal provisions. Hence, it has no evidentiary value. 25. Statement of Shri Anil 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 tha....
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.... the Department. The Hon‟ble Supreme Court in the matter of Mohtesham Mohd. Ismail [2007 (220) E.L.T. 3 (S.C.)] held that even confession of an accused is not a substantive evidence. The statement is part of the evidence only if it is voluntary and free from any sort of pressure. In the case of Francis Stanly @ Stalin vs. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram [2006 (13) SCALE 386], Apex Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. The Hon‟ble Apex Court in Vinod Solanki Vs. U.I.O. [2009 (233) E.L.T. 157 (S.C.)] again cautioned in using the retracted statement. The relevant para is as follow:- "22. It is a trite law that evidences brought on record by way of confession which 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 corroborativ....
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....ed or used, any declaration, statement or document which is false or incorrect in any material particular. Shri Gupta has not made intentionally any false sign or declaration, incorrect statements or declarations to attract penalty under Section 114AA of the Act. Therefore, penalty imposed under Section 114AA of the Act, 1962 on him is liable to be quashed. Similarly, penalty imposed upon Shri Manoranjan Kumar, Shri Chandan Choudhary, Shri Kush Agrawal and Shri Anil Agrawal cannot be sustained and are accordingly set aside." 4.12 We also note that for holding that impugned goods were of Pakistan origin certain export declarations filed at Dubai customs which were obtained from the Shipping Lines have also been relied. Appellants have questioned the validity and reliance on these documents as evidence which have been obtained from third party and not from the person making the declaration or the Government Authority to whom such declaration was made. We do not find anything on records to show that even a effort was made by the revenue authorities to obtain the copy of said declarations from the Customs Authority at Dubai, to whom the same was made. We find that Delhi Bench has in....
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....ies imposed under Section 112 (a) and (b) ibid. 4.15 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 intent (mensrea) to be established. In case of Hughes Network Systems India Ltd. [2024 (388) E.L.T. 594 (Del.)] Hon'ble Delhi High Court has observed as under: "27. Section 112 (a) of the Customs Act lays down that any person who in relation to any goods interalia does any act which would render such goods liable for confiscation is liable to penalty. Section 112(b) stipulates that any person who inter alia acquires possession of any goods or is in any way concerned in carrying, removing, depositing, harbouring or deals with any goods which he knows or has reason to believe are liable for confiscation under Section 111 of the Customs Act, is liable to a penalty. The penalty stipulated is not exceeding the value of good or....