TaxTMI 
TaxTMI 
2026 (8) TMI 1322
X X X X Extracts X X X X
X X X X Extracts X X X X
....06 dated 10.08.2000 by the appellant at ICD, Tumb were put on hold and examined under panchnama dated 20.08.2020. As further investigations revealed to the department that subject goods were not of Malyasian origin, the same were placed under seizure vide Seizure Memo dated 05.02.2021 and subsequently provisionally released with Bank Guarantee of Rs.24,98,572/- and Bond for Rs.51,22,851/-. 1.2 Shri Anand Menon, Proprietor of the appellant firm initially in his statement dated 25.01.2021 informed that he had started the subject firm in January 2020 and M/s. MMME, through their Sales Executive Shri Asif who had given him a proposal of 30 days credit on the imported goods i.e. the whole payment for the imported goods was to be made 30 days after receipt of the goods in India; there was no written Sales Contract and the Purchase Orders were made on "Wickr Mobile App" wherein, the data was automatically removed after 7 days. He further stated that he was unaware about the origin of the subject imported goods. He was further shown a copy of statement dated 03.07.2020 of Shri Achin Goel, Proprietor of M/s. R. R. International, New Delhi wherein Shri Achin Goel had stated that due to im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h they had availed benefit of notification No. 46/2011-CUS dated 01.06.2011. They filed appeal against impugned Order-in-Original dated 21.12.2023 whereby, the learned Commissioner denied benefit, of Notification No. 46/2011- CUS dated 01.06.2011 as amended to them and confirmed the differential customs duty along with interest; held the imported goods liable for confiscation and gave option to redeem the goods on payment of fine; imposed penalty on the appellant under section 114A as well as 114AA of the Customs Act, 1962. 2.1 It is claimed by the department that an investigation was conducted with regard to some other CoO. A list of 87 suspected non-authentic CoO was provided by the Principal Assistant Director, Trade and Industry Cooperation Section, Trade and Industry Support Division, MITI, vide email dated 12.04.2021. Therefore, it was assumed that even the CoO pertaining to the goods imported by the appellant are non-authentic. The department also claimed that in reference to another CoO No. KL-2020-AI-21-089737 in relation to a third party, which was in respect to goods exported by MMME from Malaysia to India, it was investigated and found that the same was not genuine. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... completed and the result communicated to the Issuing Authority within six (6) months. While the process of the retroactive check is being undertaken, subparagraph (iii) shall be applied." 2.3 This process is also outlined in Section 28DA of the Customs Act, 1962, and the Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020. CBIC Circular No. 38/2020-Customs dated 21.08.2020 further elaborates the procedures for sending verification requests and guidelines for implementation. 2.4 Appellant's submissions from a combined reading of the above provisions, is that in case of doubt about genuineness of the CoO provided by the supplier exporter, the investigating officer's primary duty was to verify the CoO from the issuing authority of the supplier exporter country. They rely on the decision in the case of Ratnamani Metals and Tubes Ltd. V. Commissioner of Customs, Mundra,(2024) 18 Centax 31 (Tri.-Ahmd) wherein in an identical case of import of Cold Rolled Stainless Steel products from Malaysia by Ratnamani Metals and Tubes Ltd., the importer claimed concessional duty exemption under Notification Nos. 46/2011-Cus., 53/2011-Cus., and 189/2009-Cus. (N.T.). I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Vs. CC, Mundra2024 (390) ELT 455 (Tri. Ahmd.). As the department failed to follow the prescribed procedure before making allegations of fraudulent CoO, denial of duty exemption and the subsequent allegations lack a solid foundation and is not sustainable in light of the principles laid down in the aforementioned case. 2.7 The impugned Show Cause Notice as well as O-I-O places reliance on the statement dated 25.01.2021 of Mr. Anand Menon, proprietor of the appellant but there is a big contradiction in the same. Initially he is said to have stated that he was unaware about the Origin of the goods imported from MMME, Malaysia but in the latter part of the said statement, he is said to have been shown a statement dated 03.07.2020 of some other importer Mr. Achin Goel (Proprietor of RR International who had also availed similar benefit and had imported goods from MMME, Malaysia) wherein he had stated that the certificate was not authentic and that the goods imported by him originated in China. Although, said importer had no concern with the present case, Mr. Menon is said to have accepted the statement of said third party in regard to a totally different transaction and on that basis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Original, learned Commissioner has in para 14.1.3, placed reliance on email received from MITI which communicated that retroactive check was conducted of random 143 CoOs out of which 87 are not authentic, which they enclosed with the mail. Based on this finding, it is concluded that CoOs in the case of the appellant are also not authentic. During the course of argument before this Hon'ble Tribunal, the appellant submitted that the aforesaid three CoOs in question are not included in the above list of 87 CoOs claimed to be non-authentic as per email of MITI and therefore required to be considered as authentic. 3.3 The Adjudicating Authority further found that Shri Anand Menon, Proprietor of the Appellant firm in his statement dated 25.01.2021 had admitted that all steel products imported by them were of Chinese origin and were intentionally routed through Malaysia to bypass imposition of CVD on the goods of Chinese origin and to wrongfully avail the FTA benefit available on imports from Malaysia and relied on the judgement of Hon'ble Supreme Court in the case of Commissioner of C.Ex. Madras Vs System & Components Pvt Ltd. reported at 2004 (165) E.L.T. 136 (S.C.). 3.4 W....
X X X X Extracts X X X X
X X X X Extracts X X X X
....E is not registered as a user of their EPCO system. Adjudicating Authority also found that during investigation, website of MMME was verified by DRI officers wherein MMME had declared their main activity as dealing in aluminum goods and it nowhere mentioned that MMME was manufacturing/processing or otherwise dealing in Cold Rolled Stainless Steel Coils. Thus, retraction affidavit was found to be nothing but an afterthought and therefore not acceptable. (v) Relying on the judgement of Hon'ble Supreme Court in the case of Visen Industries vs Commissioner reported at 2018 (360) E.L.T. A184 (S.C.) and judgement of this Tribunal in the case of Jessons Industries Ltd vs Commissioner of Customs, Kandia reported at 2014 (314) E.L.T. 433 (Tri.-Ahmd.), the Adjudicating Authority found that the importer was not eligible for benefit of Not. No. 46/2011-Cus dated 01.06.2011 as amended. 3.5 The Adjudicating Authority had further found that the importer had submitted fake Certificates of Origin and declared incorrect and wrong facts to the Customs to fraudulently avail the benefits of Not. No. 46/2011-Cus dated 01.06.2011. In view of admission by Shri Anand Menon, Proprietor of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Malaysia had also confirmed that they had never received an application from MMME and further, MMME was not registered as a user in their ePCO system. Thus, there was substantial evidence on record to establish that importer had knowingly and intentionally produced fake COO and therefore, liable to penalty under Section 114AA. 4. The department made further submissions vide letter dtd.03.11.2025 as follows:- 4.2 The point-wise relevant details of the case with regard to limitation are as under: 4.2.1. Shri Anand Menon, Proprietor of the appellant firm in his statement dated 25.01.2021 informed that he had started the subject firm in January 2020 and M/s. MMME, through their Sales Executive Shri Asif, had given him a proposal of 30 days credit on the imported goods i.e. the whole payment for the imported goods was to be made 30 days after receipt of the goods in India.; there was no written Sales Contract and the Purchase Orders were made on Wickr Mobile App wherein, the data was automatically removed after 7 days. This in itself would appear strange, unconvincing and not a normal transaction in as much as a person starts a firm in January 2020, happens to meet the Sales Ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anufacturing/ processing or otherwise dealing in Cold Rolled Stainless Steel Coils (impugned imports). This clearly indicates that dealing in any manner with Cold Rolled Stainless Steel Coils is not a part of the regular activity of the supplier. 4.2.3. He further stated that he was unaware about the origin of the subject imported goods. He was further shown a copy of statement dated 03.07.2020 of Shri Achin Goel, Proprietor of M/s. R. R. International, New Delhi wherein Shri Achin Goel had stated that due to imposition of CVD on Chinese origin goods, M/s. Leo Metal, China had arranged documents in the name of M/s. MMME, Malaysia and had submitted the said documents in the name of M/s. MMME, Malaysia to Indian Customs to pay less Customs Duty. Shri Anand Menon admitted that all the steel products imported by his firm (appellant) were intentionally routed through Malaysia to bypass the imposition of CVD on the goods of Chinese origin and to wrongly avail the FTA benefit available on the imports from Malaysia. He further accepted his mistake and stated that he would discharge the applicable Customs Duty liability on the imports done by the appellant i.e. M/s. Vrunda International.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....based merely on the admission of Shri Anand Menon and Shri Achin Goel, but was corroborated with the email dated 12.04.2021 received from The Principal Assistant Director, Trade and Industry Cooperation Section, Trade and Industry Support Division, MITI informing that MITI had never received a COO application from MMME and it was also confirmed that the company was not registered as an user in the ePCO System. Thus, the claim that the statement was recorded under duress was an afterthought. In this regard, the Adjudicating Authority found: (i) The statement was recorded on 25.01.2021 whereas the same was retracted on 24.03.2023 and submitted to the Adjudicating Authority on 21.11.2023 and so the appellant had not immediately retracted his statement. [Reliance placed on Hon'ble CESTAT, New Delhi's judgement in the case of Ureka Polymers Ltd vs Commissioner reported at 2001 (127) E.L.T. 618 (Tribunal). (Para 14.1.8 of OIO). (ii) Importer had not made retraction before the Investigating Authority but the same was made before the Adjudicating Authority and such belated retractions cannot take away the evidentiary value of their original statements [Reliance placed on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1-Cus dated 01.06.2011. These acts of omission on the part of the importer tantamount to willful mis-statement and suppression of facts on their part and provides sufficient ground to invoke the provisions of Section 28(4) for extended period upto five years. The Adjudicating Authority thus, further relying on the judgement of Hon'ble CESTAT Bangalore in the case of Surya Light vs Commissioner of Customs, Bangalore 2008 (226) E.L.T. 74 (Tri. Bangalore) found that the impugned goods do not qualify to be originating goods of Malaysia and therefore, the benefit of Notification No. 46/2011-Cus dated 01.06.2011 as amended was not available and consequently, the duty amount of Rs.58,80,088/- was recoverable under Section 28(4) of Customs Act, 1962. 4.6. The Adjudicating Authority found that the ingredient of willful misstatement and suppression of facts by the importer were clearly established and so this was a fit case for imposition of penalty in terms of Section 114A. 4.7. The Adjudicating Authority further found that the importer had contravened the provisions of Section 46(4) of the Customs Act, 1962 as they intentionally availed / took a wrong Customs Duty exemption benefit b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ght to be verified by the Government of India. Appellants submission by way of chart is that though their certificate of origin was not figuring in the list of 87 rejected by MITI still on verification of others they have been subjected in the show cause notice which stands confirmed and they have also been subjected to redemption fine as well as imposition of penalty and duty. The appellants have stated that they had submitted certificate No. KL-2020-AI21-053249 dated 29.06.2020, KL-2020-AI-21-056224 dated 08.07.2020 and KL-2020-AI-21-064326b dated 04.08.2020 which was not in the list of 87 non-authentic certificates rejected by MITI on verification of 143 certificates sent by the Government of India. The email dated 12.04.2021 which has been sought to be made basis in the show cause notice was pertaining to third party and was barring country-of-origin certificate No. KN-2020-AI-21089737 dated 12.04.2021 (sic read as 14.04.2021). It is thus clear that the certificate in this case is not of the same party which has been referred and relied upon in the purported email. Further, when out of 143 certificates referred for verification only 87 were found fake as detailed in para 5.1(ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to get precedence over the testimonial evidence or any website evidence about the gamut of activities carried out by any appellant. What is goods for doubt by investigators for investigation may not be goods enough for the touch stone of evidence. 5.3 The department in this case primarily intends to rely on two evidences. Firstly, the statement of confession of Shri Achin Goel (a third party) which was endorsed by Shri Menon of the appellant unit. However, Shri Achin Goel, in his statement itself, has made contradictory assertions. In the initial part of his statement, he claims that he does not know anything about the origin of the goods, whereas subsequently he states that the goods were of Chinese origin, but were channelized through Malaysia to evade the CVD applicable on imports from China. Furthermore, although Shri Menon initially endorsed the said statement, at the stage of adjudication he filed an affidavit asserting that the goods were indeed of Malaysian origin, as duly documented, and that the statement relied upon by the department was not voluntary. Another shadow of doubt is cast upon the version about imported goods as put forth by the department, as on 2nd Sept....
X X X X Extracts X X X X
X X X X Extracts X X X X
....METALS & ALLOYS vs. COMMISSIONER OF CUSTOMS, KANDLA, * 2020 (374) E.L.T. A42 (Tri. - Ahd.) in the matter of Dharmendra N. Rathor v. Commissioner, * 2020 (372) E.L.T. 121 (Tri. - Ahmd.) in the matter of SHRI KRISHNA INDUSTRIES vs. COMMISSIONER OF C. EX. & S.T., VADODARA-II. 5.4 For the proposition that the statement to be relied upon by the department, cross examination must be provided by offering is well supported by J & K CIGARETTES LTD. vs. COLLECTOR OF CENTRAL EXCISE2009 (242) ELT 189 (Del.). Further we find that the statement has not been attempted to be corroborated by the department through "Wickr Mobile App" or by the certificate being referred for specific verification to the concerned Malaysian authorities. A check done in respect of others cannot justify any assumption and presumption in relation to the present appellants. Further, we also find that non verification of the specific certificate of origin, is found fatal if the verification has not been carried out as in (2024) 18 Centax 31, Tribunal- Ahmedabad in the matter of Ratnamani Metals and Tubes Ltd vs. Commissioner of Customs, Mundra. At this stage, when verification is already beyond prescri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tificate was issued and same without verification cannot be rejected. It is to be seen that neither the e-mail nor the reference made by the department was specifically in relation to impugned certificates i.e. COOs in this particular case. 87 COOs which were rejected by MITI as is clear from the e-mail dated 12.04.2021 (sic should be read as 14.04.2021) from the reproduction in the factual matrix never pertains to the particular COOs in this case and also same was issued with reference to 87 non-authentic certificates, in which inter-alia one of the companies in 87 certificates was MMME. The expression used in the e-mail (as reproduced supra) is "MITI has never received any COOs application from the respective companies via or system", this expression has been used in relation to 87 COOs rejected by MITI. It also does not mention as to up to what date such statement holds good. However, by introducing an assumption with the 87 included the impugned three COOs also, the same has been taken in the OIO as "MITI has never received COO application from MH Megah Maju Enterprises,MITI has also checked that ePCO system service provider which confirms that the company is not registered as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f India reported in 2018 (361) E.L.T. 90 (P & H). * Same in relation to requirement of examination in chief has been reiterated by Hon'ble Punjab and Haryana High Court in 2016 (340) E.L.T. 67 (P & H) in the matter of JINDAL DRUGS PVT. LTD vs. Union of India. * Even the Hon'ble Supreme Court in ANDAMAN TIMBER INDUSTRIES vs. COMMISSIONER OF C. EX., KOLKATA-II reported in 2015 (324) E.L.T. 641 (S.C.) has held that ground of "non retraction" and "no useful purpose" cannot be taken to refuse cross examination. 5.6 During the course of oral arguments, the decision of Hon'ble Gujarat High Court in the matter of Trafigura India Pvt Ltd Vs. Union of India-(2023) 13 Centax 9 (Gujarat) was also brought in discussion wherein the Hon'ble Gujarat High Court had held that the provisions of AIFTA treaty not incorporated into Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of Member States of ASEAN and the Republic of India) Rules, 2009 which was no incorporated could not be taken advantage of either party as the non incorporated provisions of a treaty cannot be taken to have become part of Municipal law. The disc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gura the present case concerns not an omitted provision but express domestic rules which the department was bound to follow. The department cannot rely upon Trafigura to avoid compliance with Rule 7(c) and Rule 7(d) because that would amount to extending the judgment far beyond the issue it actually decided. 5.7 We also find that the proposition made by the AR that "what is admitted need not be proved, is not an absolute proposition. Laid down in the context of knowledge and admission by a party about contents of a product dealt with and to be classified in C.C.E-Mundra Vs. Systems and Components (P) Ltd in 2004 (165) E.L.T 136 (S.C), same was also distinguished by Hon'ble Gujarat High Court in 2011 (266) E.L.T 45 (Guj.) as not covering every admission by a director in every circumstances. Also in this case, we have already analysed above in Para 5.3 and Para 5.4, the purported statement and its corroboration as not free from various doubts. We also find relying on decisions of 2026 (2) T.M.I 344-CESTAT Kolkata in Vikash Kumar Vs. C.C (Prev.) 19. We also take note of the appellant's submission that the said statement/s relied upon against him in this case were allegedly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essee has, under the stress of investigation, signed a statement admitting tax liability and having also made a few payments as per the statement, it cannot lead to self-assessment or self-ascertainment. In the case of Vinod Solanki [2009 (223) E.L.T. 157 (S.C.)], the Hon'ble Supreme Court has ruled that the initial burden to prove that the confession was voluntary is upon the department and that evidence brought by confession if retracted, must be corroborated by other independent and cogent evidence. Madras High Court in the case of Shri Nandi Dhall Mills India Private Limited 2022 (60) G.S.T.L. 227 (Mad.)] held that merely because an assessee has, under the stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment. Though the judgment was pronounced in respect of GST, it goes to indicate that acceptance by the appellant during the course of recording the statement is not just enough and the same has to be confirmed by adducing independently corroborative evidence. The whole case cannot rest simply on the basis of a retracted statement though belatedly. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be issued in Malaysia for the export of Stainless steel Cold Rolled Coils and Circles (HS Code 7219 & 7220) under AIFTA- Dear Mr. Kipgen, Greetings from the Ministry of international Trade and Industry Malaysia (MITI). Your previous email below dated 31 December 2020 la referred to. With reference to your verification request pertaining to the authenticity of 143 copies of inform you that a retroactive check has been conducted on part of the COOs submitted in MITL https://www.google.com/file/c/1Qd614UHHUgynIHLETY2LSdsmBI90Fory view?usp=sharing Based on our assessment. 87 out of 143 copies of the COO are not authentic and they were not issued by the Ministry of International Trade and Industry of Malaysia DOS ISSUED BY I MITI has never received any COO applications from (MIT)) For your information, the respective companies via our system, Please find the list of 87 COOs attached to this email On a separate note. MITI would like to request for an extension of time from the Government of india in confirming whether the balance of 53 COOs and 3 Non-Preferential COOs are authentic as we have to the additional documents/ information as requested in the previous ema....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-085278 MH MEGAN MAJU ENTERPRISE 30.09.2019 Z KL-2019-AJ-21-072695 MZH MAJU INDUSTRY 01.08 2019 3 KL-2019-AI:21-077386 MH MEGAH MAJU ENTERPRISE 19.08.2015 4 KL-2019-AI-21-085859 MH MEGAH MAJU ENTERPRISE 01:10 2019 5 KL-2019-A1-21-086871 MH MEGAH MAIU ENTERPRISE 00 10.2010 6 KL-2019-AI-21-088746 MH MEGAN MAJU ENTERPRISE 25 10 2019 7 KL-2019-AI-21-091327 MH MEGAH MAJU ENTERPRISE 12 11.2019 8 KL-2019-AI-21-091319 MH MEGAH MAJU ENTERPRISE 12.11 2019 9 KL-2019-AI-21-095563 MH MEGAH MAJU ENTERPRISE 26.11.2019 10 KL-2019-AI-21-095873 MH MEGAH MAJU ENTERPRISE 27.11.2019 11 KL-2019-AJ-21-075801 MH MEGAH MAJU ENTERPRISE =5.08.2019 12 KL-2019-AI-21-077378 MH MEGAH MAJU ENTERPRISE 19.08.2019 13 KL-2019-A1-21-077411 MH MEGAH MAJU ENTERPRISE 19 08.2019 14 KL-2019-AI-21-080137 MH MEGAH MAJU ENTERPRISE 28 08.2019 15 KL-2019-AI-21-080172 NHH MEGAH MAJU ENTERPRISE 28 D8 2019 16 KL-2019-AI-21-085898 MH MEGAH MAJU ENTERPRISE OZ 10 2019 17 KL-2019-A/-21-086855 MH MEGAH MAJU ENTERPRISE 09 10.2019 18 KL-2019-AI-21-086834 MH MEGAH MAJU ENTERPRISE 09 10.2019 19 KL-2019 AI-21-086829 MH MEGAH MAJU ENTERPRISE 09 10 2019 20 KL-2019-AI-21-06958 SETICA INDUSTRIES (M) SON BHD....