TaxTMI 
TaxTMI 
2026 (6) TMI 265
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....ules. Alleging noncompliance with the above said exemption notification, show cause notice was issued on 27.08.2020 on the ground that the appellant had wrongly availed the benefit of preferential rate of duty. Thereafter, Adjudication Authority as per the Order-in-Original dated 23.07.2021 confirmed the demand along with interest and also imposed penalty. Aggrieved by said order, an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) as per the impugned order dated 18.11.2022 upheld the order passed by the Adjudication Authority. Aggrieved by said order, present appeal is filed. 3. When the appeal came up for hearing, Learned Sr. Counsel draws our attention to Rule 3 and Rule 5 of the India-ASEAN PTA Rules and submits that said rules prescribed that product shall be deemed to originate in Malaysia if the AIFTA content is not less than 35% of the FOB value and the non-originating material have undergone at least a change at Customs Tariff Sub-Heading( CTSH) level. In appellant's case, such goods invoiced to it from M/s. Crown Exports were accompanied by County of Origin (COO) Certificates issued by MITI, which is a government agency under the Minist....
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....IFTA Certificate of Origin is not accepted by the Customs Authority of the importing party, the time frame prescribed as a reasonable period under the aforementioned rules for return of the original AIFTA Certificate of Origin to the Issuing Authority is categorically barred from exceeding 2(two) months. In case where there is a reasonable doubt as to the authenticity of the document or as to the accuracy of the information regarding the true origin of the goods in question, a request for retroactive check can be made, however it is again categorically mandated in both the aforementioned rules that the retroactive check process, including the actual process and the determination of whether the subject goods are originating or not, should be completed and the result should be communicated to the importer within 6(six) months of the date of presentation of the certificate of origin(COO) to the customs authority of the importing Party. 5. Learned Sr. Counsel also submits that the issues are no more res integra and considered by the Tribunal in the matter of M/s. Global Exim Vs. Commissioner of Customs, Mundra reported in [2024) 21 Centax 220 (Tri. - Ahmd.)], wherein it is held that....
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....lusion thereof was made by the Custom Authority. Therefore, no malafide can be attributed to the appellant in the given facts of the present case. Therefore, we are of the considered view, that the demand is hit by the limitation. Accordingly on the ground of limitation alone the impugned order is set aside. Appeal is allowed". 6. Further the issue was also considered by the Tribunal in the matter M/s. Uni Colloids Impex Pvt.. Ltd. Vs. Commissioner of Customs - [2024 20 Centax 344 (Tri. - Ahmd.)] and it is held that:- "40. The upshot of the above analysis of the ASEAN FTA is that where doubts are raised as to the genuineness of the COOs, an elaborate verification procedure is put in place. As far as fraudulent certificates are concerned, they have been separately dealt with under Article 23. In cases of disputes concerning origin determination, classification of products or other related matters, Rule 24 (a) provides that the Government Authorities concerned "in the importing and exporting parties shall consult each other with a view to resolve the dispute, and the result communicated to the other parties". Where no mutually satisfactory solution can be reached through ....
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....report and it was beyond the knowledge of the importer, vis-à-vis the exporter (M/s. MSC) resorting to unacceptable costing methodology, found in variance with the Minimum Value Addition of 35% under AIFTA Rules. (Para 5 of Order-in-Appeal). The department by way of Show Cause Notice and Personal Hearings had given sufficient opportunity to rebut the investigation and findings to prove that they have fulfilled the conditions of Notifications/Rules, i.e. there was value addition of over and above 35% as required to become eligible for the exemption. But as per the evidence on record, appellant have failed to do so and the department has got power to verify any benefits/ exemptions claimed by the importers, at any stage and after verification/ investigation, if it is found that the conditions of the exemptions are not fulfilled, duties can be recovered. This power to verify/ investigate is inherent and no special provisions are required. It is for the importers to demonstrate, at all times, that they have fulfilled the conditions. If the importer fails to do so, then they are liable for the consequences including payment of duties/ interest/ penalties. Learned AR also relied o....
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....requires a claim for preferential tariff treatment to be supported by the COO certificates issued by the government authority in the exporting country (Malaysia) and notified to the other Party (India). Even otherwise, during the relevant period, there was no requirement on the part of an importer to possess sufficient information as regards the manner in which the COO criteria including the Regional Value Content (RVC) specified in the rules of origin in the trade agreement were satisfied, for the purposes of claiming the preferential rate of duty. Such a requirement was made mandatory only with effect from 27.03.2020 with the insertion of Section 28DA of the Act, which provides for the procedure regarding claim of preferential rate of duty or with the introduction of the Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 (hereinafter "CAROTAR Rules") which came into effect from 21.08.2020. Rule 4 thereof, provides that the importer claiming preferential rate of duty shall, inter alia, possess the RVC and submit the same to the proper officer on request. In other words, it was only with the introduction of Section 28DA and the CAROTAR Rules, that the im....