TaxTMI 
TaxTMI 
2026 (8) TMI 1011
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....nder Notification No. 01/2017Customs (CVD) dated 07.09.2017 as amended vide Notification No. 5/2021 dated 30.09.2021 SS (CR) Coils imported from China also attracted Anti Dumping duty under Notification No. 61/2015-Cus (ADD) dated 11.12.2015 as amended from time to time. The SS(CR) Coils/Sheets imported from ASEAN Countries were totally exempted from payment of Customs duty under Notification No. 46/2011-Cus dated 01.06.2011 subject to the conditions prescribed under Notification No. 189/2009-Custom (NT) dated 31.12.2009. 2.1 Due to imposition of CVD and ADD, the imports from China was not financially viable, therefore, the Appellant explored possibility of imports from ASEAN countries. It has come to the notice of the Appellant that there were certain manufacturer-suppliers in Malaysia who could supply SS(CR) coils/sheets to the Appellant under preferential rate of duty under Notification No. 46/2011-Cus. Having satisfied that the conditions prescribed under Notification No. 189/2009-Customs (NT) including issue of Country of Origin Certificate (COO Certificate) by the Ministry of International trade and Industry of Malaysia (MITI) under prescribed format and origin criteria by....
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.... cross-examination of various persons whose statement have been relied upon against the Appellant. However, the Ld. Respondent without allowing cross-examination, proceeded to adjudicate the matter (Para 45 of Show Cause Notice refers) and passed the impugned Order-in-Original. 2.6 Aggrieved against the demand of differential customs duty along with interest and imposition of various penalties, the Appellant has filed this appeal. 3. The Appellant submits that the impugned order has been passed contrary to the principles of natural justice inasmuch as no effective hearing was afforded to the Appellant before passing the Impugned order. The request for cross-examination of witnesses has been summarily rejected without any plausible reason. The Appellant submits that denial of cross-examination is contrary to the law laid down by the following case laws: - Andaman Timber Industries v/s Commissioner of Central Excise, Kolkata-II-2015 (324) E.L.T. 641 (S.C.) - Jindal Drugs Pvt. Ltd. v. Union of India 2016 (340) E.L.T. 67 (P & H) - GK Enterprises, Delhi vs. Commissioner of Customs, Mundra Custom House Final Order No. 11549/2024 dated 12.07.2024 passed by....
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....hat Notification No. 46/2011-Cus dated 01.06.2011 issued under ASEAN-India Free Trade Agreement stipulates that the goods imported into India from ASEAN countries are exempted from the Customs duty to the extent mentioned in the said notification subject to fulfillment of conditions mentioned therein and the Rules of Origin. One of such conditions is that the supplier of the originating country would obtain COO certificate from the concerned Ministry of that country and supply the original copy thereof to the importer in India. The importer would produce such certificate along with other import documents to the Indian Customs at the time of filing B/E for clearance of the consignment so imported by him from the ASEAN country. The B/E and other relevant import documents including COO so filed by the importer are invariably subject to verification by the Customs officers at the port of import. In the case of imports made by the Appellant, the Malaysian suppliers provided original copy of COO(s) in respect of all import consignments to the Appellant in the prescribed format duly certified by the competent authority of MITI, Malaysia as apparent from the COO Certificates, which bear ru....
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....y of cases of import, the consignments were duly examined and in all cases the import documents including COO Certificate, were duly verified by the Customs officers before allowing clearance for home consumption. It has not been considered that the conditions of the aforesaid notification cannot be stated to be violated when MITI reported the COO Certificates other than 87 COOs to be genuine/authentic and no evidence brought on record by the DRI that the COOs other than the only one supplied by M/s EVG Metal Industries, are not authentic. 3.9 The Appellant submits that there is no evidence that all the Malaysian suppliers are either not registered with MITI or did not meet the conditions of Wholly Obtained' or in case non-originating goods, not less than 35% Regional Value Content (RVC) in the exporting country. The allegations, therefore, are baseless and bereft of any documentary evidence. Based on the statements of the Appellant and other persons that they had admitted that so called admission in the statements is contrary to the facts as well as the same remain uncorroborated with other evidence. It is the submission of the Appellant that no effort has been made by the ....
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....ported from China during the said period (Table appended to Para-P at Pg. 32 of appeal) is liable to be set aside. 4. Regarding the allegation of undervaluation, the Appellant submits that the confirmation of demand on the ground of alleged undervaluation pertains to, (i) goods imported from China, and (ii) goods imported from Malaysia. In respect of goods imported from China, the Ld. Respondent has relied on the statements of Sh. Piyush Mittal of Opulent Metals, Malaysia and Sh. Anil Mittal of M/s Two Poles Recyclers, Delhi wherein they allegedly admitted the actual transaction value of CR Stainless Steel Coils imported from Chinese Supplier M/s Hong Yue Stainless Steel Ltd. with reference to imports made by M/s Two Pole Recyclers and that M/s Opulent Metals, Malaysia had also imported same goods from M/s Shandong Mengyin Huarum Imp. and Exp. Co. Ltd., China. In this regard, the Appellant submits that there is no allegation that the goods imported by the Appellant were identical or similar in terms of quality, quantity and specifications to the goods imported by M/s Two Poles Recyclers, Delhi. Therefore, the allegation of undervaluation in respect of consig....
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....Respondent rejecting declared transaction value and enhancement thereof in this case is contrary to the ratio of judgment of the Hon'ble Supreme court in the case of Eicher Tractor Ltd. vs. Commissioner of Customs, Mumbai as reported in 2000(122) ELT 321 (SC), which is equally applicable to the new valuation rules as new rules are pari materia to the provisions of old rules. The Appellant also relies on the decision of Hon'ble Supreme Court in the case of Commissioner of Customs, Calcutta vs. South India Television P. Ltd. as reported in 2007(7) TMI 9-Supreme Court. 4.4 It is the submission of the Appellant that loading of value in this case is contrary to the mandate of Rule 9 of the Customs Valuation Rules, 2007 as the findings of the learned Respondent in this regard is contrary to the various restrictions provided under sub-rule (1) and clause (i) to (vii) of sub-rule (2). It is not the case of the department that the Appellant had paid any amount over and above the declared invoice price. It is submitted that imports were made by the Appellant in accordance with the standard international business practice. 4.5 Without prejudice, it is submitted that even if it i....
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....ompany. The Learned Authorized Representative submits that the proprietor in his statement categorically admitted that goods have been imported from China and supplied from Malaysia. He also submits that additional money payable to the foreign supplier has been passed through hawala transactions. Accordingly, the learned Authorized Representative submits that differential customs duty confirmed in the impugned order along with interest and penalty are legally sustainable. 7. Heard both the sides and perused the appeal documents. 8. We find that the demand of customs duty has been confirmed in the impugned order mainly on the basis of the following issues:- a) Country of Origin Certificates furnished by the Appellant to the Customs in respect of consignments said to have been imported from Malaysia, are not authentic; b) As the COO Certificates are unauthentic, the Appellant would not be eligible for the benefit of exemption as provided under the Notification No.46/2011-Cus dated 01.06.2011 c) Undervaluation of goods imported by the Appellant. 9. We find that the Appellant has imported the goods namely CRSC/CRSS of Chinese origin directly from Chi....
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....etails of the 38 COOs are extracted below:- Sr. No. BE. No. & date Item description CONSIGNER COO Issuing auth Form 'A' COO Certificate No. 1 4874981 dt.12/09/2019 Cold Rolled Stainless Steel Circle ARTFRANSI INTERNATIONAL SDN BHD MITI, MALAYSIA KL-2019-AI-Z1010634 2 6044619 dt.12/12/2019 Cold Rolled Stainless Steel Circle ARTFRANSI INTERNATIONAL SDN BHD MITI, MALAYSIA KL-2019-AI-21010991 3 6064794 dt.13/12/2019 Cold Rolled Stainless Steel Circle ARTFRANSI INTERNATIONAL SDN BHD MITI, MALAYSIA KL-2019-AI-210101021 4 6815635 dt.10/02/2020 Cold Rolled Stainless Steel Circle CEKAP PRIMA SDN BHD MITI, MALAYSIA KL-2020-AI-21005872 5 7112008 dt.04/03/2020 Cold Rolled Stainless Steel Circle ARTFRANSI INTERNATIONAL SDN BHD MITI, MALAYSIA KL-2019-AI-210101285 6 7240194 dt.14/03/2020 Cold Rolled Stainless Steel Circle ARTFRANSI INTERNATIONAL SDN BHD MITI, MALAYSIA KL-2019-AI-210101339 7 8605419 dt. 27/08/2020 Cold Rolled S....
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.... 9877991 dt. 08.12.2020 Stainless Steel Coils EVG METAL INDUSTRIES SDN BHD MITI, MALAYSIA KL-2020-AI-21001799 23 9877994 dt. 08.12.2020 Stainless Steel Coils EVG METAL INDUSTRIES SDN BHD MITI, MALAYSIA KL-2020-AI-21001776 24 9812934 dt. 03.12.2020 Stainless Steel Circle CEKAP PRIMA SDN BHD. MITI, MALAYSIA KL-2020-AI-21041013 25 9813086 dt. 03.12.2020 Stainless Steel Circle CEKAP PRIMA SDN BHD. MITI, MALAYSIA KL-2020-AI-21041017 26 2087846 dt. 23.12.2020 Stainless Steel Coils EVG METAL INDUSTRIES SDN BHD MITI, MALAYSIA KL-2020-AI-21001845 27 2087837 dt. 23.12.2020 Stainless Steel Coils EVG METAL INDUSTRIES SDN BHD MITI, MALAYSIA KL-2020-AI-21001854 28 2122536 dt. 27.12.2020 Stainless Steel Coils EVG METAL INDUSTRIES SDN BHD MITI, MALAYSIA KL-2020-AI-21001873 29 2026982 dt. 19.12.2020 Stainless Steel Circle CEKAP PRIMA SDN BHD. ....
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....ail dated: 14.04.2021 Thus, we find that all the remaining 37 COOs submitted by the Appellant were found to be authentic, as they are not figuring in the letter/email dated: 14.04.2021. Accordingly, we hold that the Appellant is eligible for the benefit of concessional rate of duty as provided under Notification 46,/2011-Cus dated 01.06.2011 for all the remaining 37 COOs. Accordingly, we hold that the Appellant is liable to pay duty only in respect of one COO which is found to be unauthenticated. In respect of the one COO supplied by M/s EVG Metal Industries, which was not found to be authentic, the Appellant has already foregone the concessional duty benefit and paid the duty without availing the benefit of exemption as provided under Notification 46,/2011-Cus dated 01.06.2011. Thus, we find that no other differential customs duty is payable by the Appellant. 9.6 In the said the letter/email dated: 14.04.2021 received from MITI, it has also been mentioned that MITI had never received any COO applications from the respective companies. We find that the department has interpreted the letter that none of the COOs submitted by the Appellant for the imports made from the supplier we....
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.... stage, as held by the Tribunal, Kolkata in the case of Shri Shyam Synthetics Versus Principal Commissioner of Customs vide Final Order 75381/2025 dated 18th February 2025, by following the ratio of the judgment of the Hon'ble Supreme Court in the case of Sampat Mal Dugar- Union of India 58 ELT Page 163 (SC). The appellant also relies on the Final Order dated 18.2.2025, particularly relies on the Paragraphs 8.6, 8.7 and 8.8 of the judgement which are reproduced below for ready reference:- "8.6. We also observe that there is no document of revocation of the four certificates either addressed to the exporter or the importer. to whom it would have been issued had it been actually issued or had it been part of a formal communication. There is no authenticity of certification by any Authority of Thailand for attestation as held by the Honourable Supreme Court in the case of Collector of Customs, Bombay versus East Punjab Traders reported in 1997 (89) E.L.T. 11 (S.C.). 8.7. We observe that apart from the three letters, there is no material in the Show Cause Notice, suggesting revocation of the certificate of origin or making of retroactive check also. Thus, we find that....
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....From the documents available on record, we find that the Appellant has imported goods from various suppliers from Malaysia. However, from the List of 87 Certificates enclosed in the letter submitted by MITI, which were found to be unauthentic, there are no unauthentic COO pertains to the imports made by the Appellant. Thus, we find that the certificate submitted by the Appellant for import from all of their suppliers cannot be held unauthentic. Accordingly, we hold that there is no merit in denying the benefit of Notification No.46/2011-Cus in respect of the imports covered by the Country of Origin Certificate submitted by the Appellant in respect of the imports from other suppliers. Thus, we hold that the Appellant is eligible for the benefit of exemption as provided under the Notification No.46/2011-Cus dated 01.06.2011, in respect of all the 37 COOs submitted by them. 10. Regarding valuation of the goods, we observe that learned Adjudicating Authority has rejected the declared transaction value and enhanced the value on the basis of contemporary import. We find that the Adjudicating Authority has not followed the provisions of Rule 9 of the Customs Valuation Rules, 2007 for t....
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.... Appellant is disposed of on the above terms. (Pronounced in open court on 14.08.2026) ============= Document 1 6101337. INDERG 16/12/19 ORIGINAL AL 327 FORM AJ LAALAVELA Isaved in {Country] [dos Nomes Overient ) 4. For ofisini Las Departure Dalo: 2º Herrenke 2011 by MARITIME TRANSPORT Prelocarcipl Tarif Treatment Given Linder ASEAN-INDIA Free Trade Aron Preferential Tarif Vassel's Name/Aircraft, MG.I Pselorantial Tarifi Treatment Not Given (Please stato reason/'s] FOLEGANDROS/ 01946TI Port of Discharge: MUNDIA , INDIA Signalare of Withodsed Signarcry of the Imponing Counny S. tem number 6. Marks and Bumpers on Packages T. Number and type of [incuding quanity where 'of the limparing country) packages, description of goods appropriate and HS number 4. Origin e. Gross weight or olhar 90. Number and date crbarion [see Notes of invoices bugrisu!) quanky and velse (FOU; NON 47 CASES 90 27250 100G MD091407-11 COLD KOIJED COATED STAINLESS STEEL LAD 32901 00 TILCON SHIRT ASPER DIVOICE NO MB19900-18 DATED ZINO-NOV-2119 IC CODE #1-199 CONTAN 4. HU: DRYUMANI DMP....