TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 925
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....s amended which pertains to SAARC Preferential Trade Arrangement (SAPTA). The goods were also allegedly grossly undervalued to evade duty. The betel nuts were allegedly first brought to Mongla EPZ (Bangladesh) based firms viz Bangladesh Agro Growers and Producers Ltd. Tara Exim, Arecanut Growers and Processors Ltd. Jahan Processing Export Ltd. etc. who simply re-exported the betel nuts without carrying out any process thereon to the appellant. Such Bangladesh based firms were allegedly obtaining COO certificates from appropriate authorities in Bangladesh by misrepresenting the facts. The remittance of declared value was allegedly sent to the Bangladesh based firms through normal banking channels and the differential amount was remitted directly to Indonesian supplier through illegal channels. The India based importers/indenters were normally interacting with Shri Narendra Lodaya in connection with quality, quantity, value, shipment schedule etc. in respect of such betel nut through email correspondences. The evidences containing actual country of origin of betel nut, its actual value, actual invoice/ sales contract/ proforma invoices, remittance of differential amount through illeg....
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....eria to sec. 65B of the Evidence Act. iv. The statements attributable to Mr Narendra Lodaya and Tapan Pal are also not admissible as evidence, since the said persons did not turn up for cross-examination, which was requested by the appellant. Therefore, such statements do not have evidentiary value, as they are untested and are uncorroborated testimony of co-accused. v. Recourse of the respondent to Rule 5 of Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 is misconceived and not legal since there are no clearcut evidence supporting the price sought to be adopted, other than uncorroborated statements. Furter electronic evidence relied upon have not been certified in terms of section 138C(2) of the Customs Act, 1962 and are hence inadmissible. The Ld. advocate prayed that, due to the complete lack of evidence the impugned order be set aside and the appeals allowed. 3.2 Ld. A.R. Smt. O.M. Reena submitted on behalf of revenue that: i) The investigation revealed that Indonesian-origin betel nuts were routed through Bangladesh. Their value was understated, and facts were misrepresented to obtain Certificates of Origin (COO). This....
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....ed. vi) The Ld. A.A. allowed cross-examination of Shri Narendra Lodaya and Shri Tapan Paul by the appellant. However, both did not appear for cross-examination. The former stated that he could not travel, and the latter stated that he had not given any voluntary statements against any party. Requests to cross-examine the Assistant Commissioner and Shri Ameen Lujee were denied because no statements were recorded from them. vii) Finally, the timeline set out in Section 28(9) of the Customs Act, 1962, was observed. Delays primarily resulted from writ petitions filed by the appellant before the High Court, which remained pending until a common order was issued on 09/03/2023. Based on the submissions made and the findings in the impugned Order, the Ld. A.R. prayed for the dismissal of the appeal and confirmation of the OIO. 4. We have carefully gone through the appeal and connected records. We have also heard the rival parties. We find that the appellant has disputed the following findings in the impugned order: (a) rejection of the country of origin (b) rejection of declared value (c) denial of benefit of Notification No. 105/1999, due....
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....rmination of the origin of goods according to the Preferential Trade Agreements entered into. A tariff notification is subsequently issued under sub-section 1 of Section 25 of the Customs Act, 1962, specifying preferential rates for basic customs duty on relevant goods. At the time of import, a COO certificate from the competent authority in the exporting country must be submitted to the proper officer in the importing country. Upon verification and confirmation of the certificate's contents, the Customs officer applies the preferential duty rate for those goods. 6.3 We find that the Certificate of Origin is a document that serves as a legal declaration which certifies that goods fulfil the origin requirements in accordance with the Rules of Origin (ROO) prescribed under the respective FTA, so that they can benefit from the preferential tariff treatment as per this Agreement. Substantive conditions concerning Rules of Origin are compiled in the COO Certificate and states the Regional Value Content (RVC) + change of Tariff subheading (CTSH). The said Certificate is valid for only one importing operation concerning one or more goods. The issue of Origin Certificates and its contro....
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....he SAPTA notification benefit. This could have best been verified with the Bangladesh Authorities. While it is true that "Fraud" as is well known vitiates every solemn act, [See: Ram Chandra Singh Vs Savitri Devi And Ors - AIRONLINE 2003 SC 537; Madras High Court in Sagamma @ Sythoon Beevi Vs The Settlement Officer - W.P.No.7857 of 2010 & M.P.No.2 of 2010, Dated 14.08.2019], and hence a certificate obtained by fraud is a nullity and non-est in the eye of the law, still it is first necessary to prove that fraud was committed by the appellant in procuring the COO certificate. In such a case the proper course would have been to request the relevant Government Authorities of the exporting Party for any additional information necessary for the verification of the authenticity of a certificate, as well as the veracity of the information contained therein. [See: Hyundai Motors India Ltd Vs Commissioner of Customs, Chennai, Final Order No. 41308 to 41310/2024, dated: 21.10.2024]. 6.5 However, in this case and as recorded in the impugned OIO, it was the importer who made a request to the Director (International Customs Division) CBIC for verification of the SAPTA certificates by letter d....
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.... (347) E.L.T. 662 (Tri. - Kolkata)], examined the eligibility for exemption under Notification No.105/99-CUS dated 10.08.1999 when read with SAPTA Rules, which is also the notification benefit being claimed by the appellant. The Tribunal held: "4. Heard both sides and perused the records of the case. The issue involved in the present appeal is whether the main appellant is eligible to avail partial exemption under Notification No.105/99-CUS dated 10.08.1999 when read with SAPTA Rules. As per the first Proviso to this Notification, the Assistant Commissioner/ Deputy Commissioner/ Joint Commissioner has to be satisfied that imported goods are in accordance with the Customs Tariff (Determination of Origin of Goods under the Agreement on SAARC Preferential Trading Arrangement) Rules, 1955- [SAPTA Rules]. As per Rule 4 of the SAPTA Rules read with its Schedule even products processed in the member countries are eligible for concessions under SAPTA Rules when the base goods are not produced/manufactured in the contracting countries. The only requirement under these Rules is that a certification of origin has to be produced for availing concessions as issued by the designated aut....
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....extent. 7. Evidentiary value of the records obtained from the computer/electronic devices as per section 138C of the Customs Act 1962. 7.1 The appellants have stated that, during the course of inquiry against some other importers as listed at para 15 of the OIO, DRI has retrieved certain electronic documents taken from one Narendra Lodaya and Tapan Paul, which cannot be used against them as the matter did not relate to them and the stated recovery was made without certification as mandated under section 138C of the Customs Act. The documents are the basis of the valuation of the goods and hence the whole demand must fail. 7.2 We find that the issue relating to the evidentiary value of the records obtained from the computer as per section 138C of the Customs Act 1962 and 65B of the Evidence Act. M/s. Media Graphics Vs Commissioner of Customs, Chennai [Final Order Nos. 40925 to 40927/2024, Dated: 23.07.2024], was examined by a Co-ordinate Bench of this Tribunal at Chennai. The Tribunal speaking through one of us [Shri M Ajit Kumar, Member (Technical)], held: "9. We also find that the OIO in this regard depends on evidence gathered from electronic devices, data of wh....
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.... condition under Sec 65B(4) for admissibility of electronic evidence. The Court also overruled it's earlier decision in Tomaso Bruno (supra) wherein it was held that sections 65A and 65B of the Indian Evidence Act are only procedural provisions, since they are not a complete code on the subject and hence a certificate is not required under Sec. 65B. It also disagreed with the Ramajyam judgment (supra) of the Hon'ble Madras High Court, wherein it was held that in lieu of the certificate under section 65B, evidence aliunde (elsewhere) can be given by the person who was in possession of the device. 12. WE find that Section 138C of the CA 1962 provides for the admissibility of micro films, facsimile copies of documents and computer print-outs as evidence in a proceedings under the Act without further proof of production of the original. The section differentiates between the original information (primary evidence) contained in the "computer" itself and copies made there from (secondary evidence). The section would not come into play when original documents are being produced in evidence. The admissibility of evidence relating to print outs of electronic records as per the reco....
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....2.2025]. The Bench speaking through one of us [Shri Ajayan T.V., Member (Judicial) held: "61. However, we are unable to subscribe to the view that cross-examination of the witness is a necessary pre-requisite in all circumstances. Wherever, the scenario under Section 9D(1)(a) arises, it goes without saying that there would not arise a question of the deponent being made available for cross-examination. Similarly, when the adjudicating authority, on examination of the witness under Section 9D(1)(b) forms an opinion in the facts and circumstances that the witness has resiled from his earlier statement and is to be considered hostile, and that the adjudicating authority deems it necessary to rely on the earlier statement of the witness, then again there does not arise a further necessity to make the witness available for cross-examination to the assessee. However, if the witness is deposing against the assessee, then it would be necessary for the adjudicating authority to offer the said witness to the assessee/assessee's representative for cross examination if the assesse so desires and requests for cross-examination, as otherwise it would be prejudicial to the assessee. Thus....