TaxTMI 
TaxTMI 
2026 (9) TMI 480
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....ssable Value (AV) of the imported goods i.e. 'Low Ash Metallurgical Coke' and Social Welfare Surcharge (SWS) @ 10% on BCD. Additionally, they were paying Anti-Dumping Duty (ADD) in respect of imports from China as mandated under Notification No. 53/2016-Customs (ADD) dated 25.11.2016. However, there is no requirement of payment of Anti-Dumping Duty in respect of imports of 'Metallurgical Coke' from Japan. 3. The respondent vide their letter dated 23.10.2019 had sought for re-assessment /amendments /corrections in 06 (six) Bills of Entry bearing No. 8369002, 8369006, 8369575, 8369580, 8369642 and 8369005 all dated 08.10.2018 stating that they are entitled to the benefit of concessional rate of BCD for imports from Japan under the Comprehensive Economic Partnership Agreement (CEPA) between India and Japan read with Sl. No. 175 of Notification No. 69/2011-Customs, dated 29.07.2011. By virtue of the said arrangement, the items falling under Customs Tariff Heading 2704 are exigible to BCD @ 2.7% under Notification No. 34/2018-Customs dated 27.03.2018 with effect from 01.04.2018 and 1.8% under Notification No. 10/2019-Customs, dated 28.03.2019 with effect from 01.04.20....
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....the clearance of goods but only on the basis of documents that existed at the time of the clearance of goods. However, in the present case, since the importer has failed to provide any documentary evidence to this effect and they were not able to substantiate that the exemption notifications were not visible in their system, their request for amendment in Bills of Entry could not be considered. Thus, the impugned order allowing amendment of bill of entry is unsustainable. 6. Learned Counsel for the Respondent submits that at the time of filing the Bill of Entry, Respondent could not claim the concessional BCD due to nonproduction of the certificate and exemption Notification was not reflecting in the Customs portal. Subsequently, Respondent obtained the Certificate of Origin ("COO") with retrospective effect in terms of Customs Tariff (Determination of Origin of Goods under CEPA between the Republic of India and Japan) Rules, 2011 (hereinafter referred to as "CEPA Rules") and filed application under Section 149 of the Customs Act, 1962 ("the Act") for the amendment of Bills of Entries in dispute for the inclusion of the above said Exemption Notification and consequently seeking ....
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....ced below- "Appendix-A to Annexure-2: Implementing Procedures 3. Issuance.- (a) a certificate of origin should be issued not later than three days from the date of shipment. (b) in exceptional cases where the certificate of origin has not been issued before the time limit provided for in clause (a) at the request of the exporter or its authorised agent, the certificate of origin may be issued retroactively in accordance with the laws and regulations of the exporting Party within nine months from the date of shipment, in which case it is necessary to indicate "ISSUED RETROACTIVELY" in Box 8 of the certificate of origin specified in Appendix-B to Annexure-2: Provided that in such cases, the importer of the goods who claims the preferential tariff treatment for the good may, subject to the laws and regulations of the importing Party, provide the customs authority of the importing Party with the certificate of origin issued retroactively: Provided further that the certificate of origin issued retroactively should indicate the date of shipment in Box 3 in Appendix-B to Annexure-2. (c) where an importer of an originating good....
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....hat with respect to the concerned Bills of Entries (BOEs), the documents evidencing the origin of Metallurgical Coke from Japan such as, the invoice, Bill of lading, Certificate of weight, etc., have been existing since the time when goods had arrived at the port. Further, the COO with respect to the disputed Bills of entry have been obtained retroactively, which is permitted as per the Customs Tariff (Determination of Origin of Goods under CEPA between the Republic of India and Japan) Rules, 2011, the said certificates were deemed to be operational and existent at the time of the import as well. It is a settled legal provision that deeming fiction should be understood in a logical manner. In this regard, Learned Counsel draws our attention to the judgment of Allahabad High Court Judgment in the case of Principal Commissioner, Noida Vs. Samsung India Electronics P. Ltd., -2018 (361) E.L.T. 505 (All), wherein it is held that Section 149 appears to be a provision to give effect the charge of duty created under Section 12 of the Act. While Section 25 of the Act being an exception, Section 149 cannot apply to goods exempt from payment of Customs duty under Section 25 of the Act. Accord....