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2026 (4) TMI 1845
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....ripti Bengani, Director, M/s. Bengani Commodities Private Limited, Shri Bimal Bengani, Shri Soumen Saha Versus Commissioner of Customs (Preventive), Kolkata With Customs Appeal No. 75307 of 2024 With Customs Appeal No. 75314 of 2024, Customs Appeal No. 75315 of 2024 With Customs Appeal No. 75317 of 2024 With Customs Appeal No. 75367 of 2024 With Customs Appeal No. 75373 of 2024, Customs Appeal No. 75374 of 2024, Customs Appeal No. 75391 of 2024, Customs Appeal No. 75398 of 2024, Customs Appeal No. 75399 of 2024, Customs Appeal No. 75436 of 2024, Customs Appeal No. 75437 of 2024, Customs Appeal No. 75440 of 2024, Customs Appeal No. 75441 of 2024, Customs Appeal No. 75444 of 2024, Customs Appeal No. 75445 of 2024 With Customs Appeal No. 75499 of 2024, Customs Appeal No. 75500 of 2024, Customs Appeal No. 75515 of 2024 With Customs Appeal No. 75516 of 2024, Customs Appeal No. 75517 of 2024, Customs Appeal No. 75518 of 2024 With Customs Appeal No. 75519 of 2024, Customs Appeal No. 76114 of 2024 For the Appellant : Shri Arijit Chakrabarti, Advocate For the Respondent : Shri Faiz Ahmed, Authorized Representative, ORDER PER SHRI R. MURALIDHAR : The appellants have importe....
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.... 26 2525 19,12,86,258 C. No. VIII (48)83/ CUS/ AONE AGRO/ DRI/ SCN/ GJD-LCS/2022 dated 17.10.2022 16/CUS/CC (P)/WB/202 3-24 dated 28.12.2023 B. Sanjoy Deb, Prop. of M/s. Sowallow Enterprises 29.12.2019 to 06.02.2020 18 1720 13,89,74,908 C. No. VIII (48)82/ CUS/ SOWALLOW/ DRI/ SCN/ GJD-LCS/2022 dated 19.10.2022 11/CUS/CC (P)/WB/202 3-24 dated 29.11.2023 C. M/s. Bengani Commoditi es Pvt. Ltd. 07.11.2019 to 30.01.2020 27 3429 25,79,98,459 C. No. VIII (48)85/ CUS/ BENGANI/ DRI/ SCN/ GJD-LCS/2022 dated 17.10.2022 17/CUS/CC (P)/WB/202 3-24 dated 29.12.2023 D. M/s. V. K. Oils Ltd. 05.12.2019 to 05.02.2020 15 1669 12,46,95,696 4. He submits that while the appellants have classified the imported goods under CTH 1514 9190 / 1514 9210 and the Revenue has taken the stand that the same would fall under CTH 1514 1120 [Low Erucic Acid Rapeseed (LEAR)]. The Customs Duty component is same in respect of all these Tariff Headings. However, the Revenue is viewing the imported goods as LEAR or Canola Oil and taking the ground that only Canada has the soil fertility to produce Rapeseed having Erucic....
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....mand the differential duty based on the proposed re-classification. He submits that demand of duty would arise only upon re-assessment. 7. It is submitted that while passing impugned Orders-in-Original, the respondent Commissioner has re-assessed all the past B/Es of the respective importers under Section 17(5) of the Customs Act, 1962 [Ref. Para (v) & (vi) at page 169-170 of Appeal No. C/75377/2024], whereas, there was no such proposition in the SCN [Ref. page 83-84 of Appeal No. C/75377/2024] and the SCN was specifically issued under Section 28(4) of the Customs Act, 1962 [Ref. page 14 of Appeal No. C/75377/2024] and hence, the act of the respondent is beyond the scope of SCN and hence, not maintainable. Further, the Hon'ble Supreme Court of India in Commissioner of Customs v. Canon India Pvt. Ltd. [2024 (390) ELT 545 (S.C.)] has categorically held that the ambit of Section 28 and Section 17 of the Customs Act, 1962 are completely different and hence, cannot be coupled together [Ref.: Para 95 to 99 of the report]. 8. It is also submitted that the Hon'ble Supreme Court of India at para 102 of the Judgment passed in Cannon India supra has held that "The use of the art....
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....is not a case that the Revenue came to know about the Erucic Acid content of the imported goods only after the samples were tested once again during the investigation stage. The entire system of collecting the sample and number of samples collected during the second testing, are clearly flawed. The goods were already sold by the importers. It is on record that after the goods reached various indigenous buyers, the DRI officials visited them to verify the quality of the oil received by them. The details of Bills of Entry involved vis-à-vis the number of samples collected is as per the following Table: Sl. No. Name of Importer Period of dispute Total number of past B/E Number of Samples Collected A. M/s. Aone Agro Products Pvt. Ltd. 18.12.2019 to 06.02.2020 26 6 B. Sanjoy Deb, Prop. of M/s. Sowallow Enterprises 29.12.2019 to 06.02.2020 18 4 C. M/s. Bengani Commoditi es Pvt. Ltd. 07.11.2019 to 30.01.2020 27 7 D. M/s. V. K. Oils Ltd. 05.12.2019 to 05.02.2020 15 4 11. The Ld. Counsel submits that even as the Test Reports of all the imported consignments [26, 18, 27 and 15 in respect of the four appellan....
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....se to the query raised on the SAFTA Certificates of Origin issued by Bangladesh, enquiry and investigation has been conducted at their end from various exporters, in Q & A form. The entire details of these Q & A sheets have been forwarded by the Director (Policy) Export Promotion Bureau., Bangladesh, certifying that the Questionnaire is verified with supporting documents and was found to be correct. It is also specifically mentioned that the Erucic acid content was not checked since there was no specific requirement given at the time of exports. 14. The Ld. Counsel submits that once the Bangladesh Authorities certify that the contents in the SAFTA Certificates of Origin are found to be correct, the Indian officials have no jurisdiction to question the same by taking a mere assumption that Bangladesh is not capable of producing seeds with less than 2% Erucic Acid. There is nothing to suggest that any query was put to the Bangladesh officials as to whether their country is capable for producing the oil with less than 2% Erucic acid content. As can be seen from the CRCL report, in many cases, the Erucic Acid content is more than 2 %. The counsel takes us through to Page 296, wherei....
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.... 21. The Ld. Authorized Representative appearing for the Revenue, takes us through the detailed investigation and enquiries conducted by the Department. He submits that after many consignments were imported, the investigation was taken up by DRI, wherein they came to a conclusion that the oil imported were LEAR in nature. Since no rapeseed with less than 2% Erucic Acid content was being produced by Bangladesh, the question of the resultant oil being wholly manufactured at Bangladesh would not arise. The samples drawn at the time of imports were once again sent to three different laboratories, wherein it has come out clearly that the Erucic Acid content is less than 2%. The test results of these three labs are part of the SCN and the relied upon documents. He further submits that enquiries were conducted with various buyers of the oil in India, wherein they have confirmed that they have purchased Canola oil from the importers. Thus, it becomes clear that the appellants have imported Canola Oil in the guise of Crude Rapeseed oil and have availed the SAFTA benefit which is not available to them. 22. Heard both the side in detail. Perused the appeal papers, written submissions, c....
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....hese result of CRCL have been ignored by the Revenue. (c) The DRI has sent the details of Certificates of Origin issued, to Bangladesh Authorities to check the veracity of the same. Positive Report has been received from them. Once they have confirmed that the COO issued is proper, the Revenue has no legal authority to question their authenticity. The appellant relies on the cited case laws. (d) The SCNs have been issued in October 2022 in respect of the consignments imported during the period 18.12.2019 to 06.02.2020, by invoking the extended period provisions of Section 28(4), which is legally not sustainable on account of time bar, considering the fact that all the Test Reports for the samples drawn at the time of imports were very much available with the Department. (e) The SCN has been issued in November / December 2023 in respect of the consignments imported during the period 18.12.2019 to 06.02.2020, by invoking the extended period provisions of Section 28 (4), whereas the Adjudicating authority has redetermined the classification, falling under Section 17(5), which was not the proposal in the SCN. (f) The re-determination of Section 17(5)....
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....an officials have sent their query to the Bangladesh officials to check the veracity of the Certificates of Origin issued by the exporters. The verifications have been conducted by Bangladesh officials and the same has been forwarded to the Indian officials. 30. In the report given by the Bangladesh officials, they have enclosed the Question posed to the exporters and Answers received on various issues. The relevant portion reads as under: Question 7: Please provide the following information for each material / components used to produce the goods certified as originating. In the answer [from the extracted copy reproduced above], states that: (a) The Rapeseed pertains to 'Local Purchase' (b) Country of Origin of the purchased Rapeseed is 'Bangladesh' 31. We have also gone through the attachment made to 456/17/2020 Cus at Page 296 of the Paper Book, about the origin of the rapeseed. The Bangali language Statement and its translation is extracted below: 32. The documents were given for Translation to Gemini and their result is reproduced below: This document is a supplier ledger for Sonargaon Seeds Crushing Mills Ltd. It details the sup....
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....s value subjected to assessment by Sri Lankan customs appears to be low. For this, support was drawn from LME price. We note that assessment of import of ingots was made by Sri Lankan Customs. The same cannot be varied here. We find it is not open to counterpart in India to reassess the goods which are not imported into India. 6.xxxxxxxxxxxx Even otherwise, we note that certificate of origin and the data submitted to get such certificates cannot be questioned based on statements of the importers. We find no record to the effect that the country of origin certificates issued by the Sri Lankan Government has been questioned by the Indian Authorities and follow up after import was done in order to cancel or recall the same. We note that the issue regarding country of-origin certificate and questions of bonafideness was discussed in the bilateral meeting of working group between the two countries on 5-6 2002 it was agreed that no detention or hold up of cargo is to be ordered on the question of bonafideness of certificates. Verification, if any, can be done post-facto with the concerned local nodal focal points at the respective headquarters. This much has been recorded in the....
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....oncessions 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 authority of Govt. of exporting contracting State and notified to the other contracting States in accordance with the certification procedures mentioned in the form annexed to SAPTA Rules. Required certificates of origin with respect to imported goods were furnished by the appellant where percentage of value addition as per SAPTA Rules was also indicated. Adjudicating authority has not accepted the value addition indicated in the certificate of origin but has gone with the investigation indigenously to allege that value addition cannot be to the extent claimed by the Appellant and also that activities undertaken by the supplier of cloves does not amount to 'processing' of cloves. It is observed from various provisions of SAPTA Rules and Notification No. 105/99-Cus., dated 10-8-1999 that there is no discretion or power with the Customs authorities to reject the certificate of origin given by the concerned contracting State. Para 9 of....
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....ter specific queries were made by the Customs authorities in India. We also note that the similar consignments have been cleared by the Customs authorities extending the preferential rate of duty in similar set of facts. We have perused the impugned order. We note that there is a basic contradiction in the findings recorded. After careful examination of the available details, the Original Authority categorically held that the goods were not of Chinese origin and as such, anti-dumping duty cannot be levied on them, which is otherwise leviable if the goods are of Chinese origin. Having recorded thus, the Original Authority proceeded to hold that the appellant is not eligible for preferential rate though admittedly, the goods have originated from Sri Lanka. In other words, the goods were held to be of not Chinese origin and also not of Sri Lankan origin. In other words, we note that it is clear that the question of country of origin of the present goods is left hanging without a finding by the Original Authority. The goods were neither of Chinese origin nor of Sri Lankan origin. We note that the same is not a tenable position. 8. The Original Authority has apparently exceeded....
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....y evidence on record of any overseas enquiry with the Bangladeshi supplier or confirmation with Bangladesh Customs or Bangladeshi Authority, and therefore the SAFTA Certificate cannot be unilaterally rejected. We find that the past three Bills of Entry, the Proper Officer i.e. Assistant/Deputy Commissioner of Customs, Petrapole LCS had done value loading after due consideration and extended benefit of Exemption Notification on verification of documents like SAFTA Certificates, invoices etc. and thus we do not find any ingredient of collusion, willful misstatement or suppression of facts and accordingly the penalty imposed under Section 114A of the Act ibid is fit to be set aside." 39. This Bench in Shree Shyam Synthetics Vs Principal Commissioner of Customs (Port) Custom in Customs Appeal No. 75020 of 2025 vide Final Order No. 75381 / 2025 dated 18.02.2025, has held as under : "8.8. It is also settled law that the if certificates at the time of import were valid, then their validity cannot be questioned on the basis of surmises. In this case, the evidences submitted by the investigation does not conclusively prove that the COOs submitted by the appellant were not genuin....
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....ers. (7) The Certificates of Origin in question have neither been cancelled nor been revoked. (8) Till the amendment carried out vide Section 28DA in 2020, the importer is not fastened with any responsibility to prove that they have undertaken any due diligence work to check the veracity of the contents of the Certificates of Origin. (9) No evidence has been brought in to the effect that the appellant has played any role in the alleged contravention [which in itself is vague] by the overseas exporter. (10) The cases laws are clear that once the Certificates of Origin have been submitted and their authenticity is not doubted, the Customs Officials in India cannot sit on the judgement on the contents of the same, at a much later date" 41. We have also gone to the amended provision of Section 28DA, which casts higher burden on the importer claiming the preferential rate benefit. This Section has been inserted in the Customs Act, 1962 with effect from 21st September 2020. The relevant portion is extracted below : Section 28DA. Procedure regarding claim of preferential rate of duty. - (1) An importer making claim for preferential ....
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.... passengers, advocates, tax practitioners and authorized representatives and all other stakeholders is invited to Board's Circular No. 38/2020-Customs dated 21.08.2020 issued vide F.No.15021/18/2020 (ICD) on the above mentioned subject. Reference is drawn to Chapter VAA and section 28DA of the Customs Act, 1962, which has been inserted vide clause 110 of Finance Act, 2020, and to Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 (hereafter referred to as the CAROTAR, 2020) issued vide Notification No. 44 C/76046 & 76047 of 2015 81/2020-Customs (N.T.) dated 21st August, 2020. 1.1 The aforementioned section and rules aim to supplement the operational certification procedures related to implementation of the Rules of Origin, as prescribed under the respective trade agreements (FTA/PTA/CECA/CEPA) and notified under the customs notifications issued in terms of section 5 of the Customs Tariff Act, 1975 for each agreement. 1.2 The CAROTAR 2020 shall come into force on 21st September, 2020, to provide sufficient time for transition and to ensure that the prescribed conditions in terms of rule 4 are compiled with. Necessary modifications in bil....
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....962. 44. We find that in the present case, all the imports were between 18.12.2019 to 06.02.2020, i.e., prior to the Section 28DA coming into force. Therefore, the appellants herein are not burdened with the additional requirement given so as to know the veracity of the overseas exporter as given in the Certificate of Origin. 45. A combined reading of the factual details of the verification of Certificates of Origin discussed and analysed in the above paragraphs, along with the ratio of the cited case laws, which are squarely applicable to the present appeals and the amended provisions of Section 28DA of the Customs Act 1962, makes us to come to a conclusion that Revenue's case doubting the veracity of the Certificate of Origin has no legs to stand on. Therefore, we set aside the impugned orders on this ground itself. 46. Coming to the issue of sample testing done on random basis at the time of investigation, we have compared the results of CRCL when the oil was tested on the date of import and the subsequent test results in respect of the six Bills of Entry. Characteristics Bill of Entry - Wise Test Results 6658085 6638098 6722988 6638097 6671787 6....
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....e show cause notice proposes to apply the results of these test reports to 61 Bills of Entry during the period from 21-11-2005 to 12-4-2006. Further the Commissioner has observed that to make the test results applicable, all the parameters have to be similar, i.e. description of the goods, the supplier of goods, importer and the price of the goods should be the same. If any one of the parameters is changed, then the test results cannot be applied to those situations. Only when all the parameters are identical, it can be reasonably concluded that the goods were also identical. Further we find that since all the goods were not identical and therefore one test report cannot be applied for all the goods and the same has rightly been considered by the Commissioner. In view of the cogent and convincing reasoning given by the Commissioner with regard to each and every ground, we are of the considered opinion that there is no infirmity in the impugned order which we uphold by dismissing the appeal of the Revenue." ▪ 2001 (134) E.L.T. 285 (Tri. - Kolkata) - SHALIMAR PAINTS LTD. Vs CCE, CALCUTTA "7. The first grievance of the appellant is that though the classificatio....
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....red in the normal course under the finalized Bills of Entry. (c) The Revenue took more than 2 years to take up the subsequent testing of the samples, which was already available with them. (d) No instance of connivance of the appellants in getting the Certificate of Origin fraudulently has been brought in by the Revenue. (e) Checking up of the veracity of the Certificate of Origin has been independently taken up by the DRI / Revenue. The Exporting County has stood by the COOs issued by their officials. 53. In view of the above observations, we conclude that Revenue has failed to bring in even an iota of evidence to fasten the larger period provisions on the appellant, so as to invoke the same to confirm the demand. Therefore, we hold that the entire proceedings are time-barred. 54. Having decided the issue both on merits as well as on account of limitation, we turn our attention some other points canvassed by the appellants. 55. As per the appellants, the re-determination of Section 17(5) is to be done by the officer who as assessed the Bill of Entry [the AC / DC], whereas in this case the Commissioner has taken up the redetermination. The SCN ha....
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..... In the normal course, the Appeal is required to be filed within 3 months from the date of filing of the self-assessed Bill of Entry. In the normal course, two options would be available to the Revenue. The first one is to re-assess the self-assessed Bills of Entry to quantify the demand under Section 17 (4) & (5). The second option is to file an appeal before the Commissioner (Appeals) under Section 128. In case of re-assessment, the same is to be done immediately and a speaking order is to be issued within 15 days from the date of re-assessment. In case of an Appeal, the same is required to be filed within 60 days [plus the condonable period of 30 days]. But if the Revenue gets some information about the contravention, in such cases the Revenue's resorting to Section 28 to issue the SCN towards recovery of demand, will not have any adverse effect on the case. It would be for the noticee to counter that no case of suppression has been made out against them. Therefore, in the present case, we do not subscribe to the appellant's argument that it was necessary for the Revenue to file their Appeal before the Commissioner (Appeals). Based on the factual details discussed supra, we hav....
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....HOMRA BHOMRA AME & ADDRESS 2.CB NAME JYOTI CUSTOMS BROKER SERVICES PRIVATE LIMITE 3.AEO SUMMARY DECLARANT AONE AGRO PRODUCTS PRIVATE LIMITED LOA DAELALILACO KINWAL 42A, RAFI AHMED KIDWAI ROAD. 4TH FL. 4.UCR F B. FLAT NO. 4A.ASPIRATIONS ENIGMA, DECE KOLKATA.W.B. BOLRATA, 700016 6392534 D CODE C. DUTY 8.G.CESS :18.TOT.ASS VAL 6.CVD 7.IGST 2.ACD 3.SWS 4.NCCD 5.ADD 1.BCD 8427075 8427075 12.TTA 13.HEALTH 14.TOTAL DUTY 15.INT 16.PNLTY 17.FINE 19.TOT. AMOUNT O.SAED 9.SG 421354 421354 1.IGM NO 2.IGM DATE 3.INW DATE 4.GIGMNO 5.GIGMDT 6.MAWB NO 7.DATE 8.HAWB NO 9.DATE , 10.PKG 11.GW 64225 7/01/2020 | 07/01/2020 EXPTC19262 2 29/12/2019 6 110 0 D.MANIFEST DETAILS E. BOND DETAILS 3.BOND CD 4.DEBT AMT 5.BG AMT 1.SR NO 2.CHALLAN NO 3.PAID ON 4.AMOUNT(Rs.) 2029883314 08/01/2020 421354 1.BOND NO. 2.PORT F. PAYMENT DETAILS 4.CUR G. 1.WBE NO. 3.WBE SITE 4.WH CODE 1.EVENT 2.DATE 3.TIME EXCHANGE RATE SUMMARY# Submission 07-JAN-20 10:25 1 USD=72.15INR Assessment 08-JAN-20 19:08 Examination OB-JAN-20 H. PROCESSING DETAILS 09-01-2020 10:36 DETAILS - 1.S....
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....SN 2.ITMSNO3.TYP 4.ICEGATE ID 5.IRN 6.DOC CODE7.ISSUE PLACES.ISSUE DT 9.EXP DT 86100 JYOTICUSCUL19 2020010700001760 GHOJADANGA 07-JAN-20 20-JAN-20 38000 JYOTICUSCUL19 2020010700001761 GHOJADANGA 07-JAN-20 20-JAN-2 AS ICESBEFIRSTC 1202001080024394 08-JAN-20 0 929AS ICESBEFIRSTCOPY 1202001070008418 07-JAN-20 SSONG DECOCCIDETCOPY 1202001070010718 07-JAN-20 70500 JYOTICUSCUL19 2020010700001762 GHOJADANGA 07-JAN-20 20-JAN-20 M. CONTAINER DETAILS 4.FCL/LC 3.SEAL NUMBER 2.TRUCK NUMBER 1.CONTAINER NUMBER OUT L NA N. INVOICE DETAILS 3. INVOICE AMOUNT 2. INVOICE NO EXPCI19262 1. SNC 115500 USE GLOSSARY DDA _ Dvaradina: J : ING . Ingredient Master Invoice iTems Dept comments Exam order Queries iGM Cont exAm instr liceNce duty Grp7_dutyfg Qthe Test Memo No 1060580 Test Memo Dt (07-JAN-2020 AG 1 BE Date 07-JAN-2020 BE NO 637461 3 CHA Name TEC 0215000358 Imp Name AONE AGRO PRODUCTS PRIVATE LIMITED Imp Add 42A, RAFI AHMED KIDWAT ROAD, 4TH FL. Sup Nm CITY SEED CRUSHING INDUSTRIES LTD. Sup Ontly BANGLADESH Item Desc CRUDE RAPE SEED CIL Query Desc . TO CONFORM WHETHER CRUDE RAPE SEED OIL OR ....
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....s in SAFTA for goods exported to ... 2.9 DEC 2019 Place and date, signature and stamp of certifying authority INDIA [ importing country) Place and date, signal Zobel Rana ....... ExecutivoExport signatory y Group DHAKA, 29.12.2019 Document 2 Error: API error] Document 3 Sonargaon Seeds Crushing Mills Ltd. Supplier Name Goods Name Qua thấy 2 Oske 1,833:45 23-Fat-2019 3,833:45 24-Feb-2010 1,221,79 24-Feb-2019 12 32.67 24-Feb-2019 1.2 20.60 25-Feb-2019 1,2 21.79 25-F46-2019 1,2 20180 26-Fab-2019 1,224.00 15-Mar-2919 1,237.84 24-Apr-2019 .1,229:70 25-Apr-2049 1,218.50 25-Apr-2019 1,2 13.90 25-Apr-2019 Thị đạt đối, bịviệt. 1,227/40 25-Apr-2019 1,226.72 28-Apr-2019 PY THI XIM 1,2 23.83 27-Apr-2019 मà¥à¤¨à¤¾à¤¯ रायानी 1.222.05 27-Apr-2019 à¤à¤®- à¤à¤¾à¤®à¤¾ मडिया 1,158:21 25-Nov-2019 1,223;15 25-Nov-2019 PHẠT quit hout. 1,158.2 23-Nov-2019. 1,358:21 27-Noi-2019 दिनà¤à¥€ मांà....