2015 (1) TMI 404 - AT - Customs

Import of copper concentrate from Chile and Indonesia - Benefit under Notification No.101/2007-Cus. dated 11.9.2007 and Notification No. 46/2011-Cus. dated 1.6.2011 - allegation that certificates of origin presented by the respondents are not in conformity with Notification - Held that - On perusal of the adjudication order it is seen that the provisional assessments were resorted to in respect of valuation and quantity as the Buyer s assay certificate Final assay certificate statement of facts given by the master of the vessel Final Invoice etc. were not available. There is no whisper in the adjudication order that either any proceeding was initiated as per the said Rules 2007 in respect of verification of the Certificate of Origin or provisional assessment was resorted to for want of Certificate of Origin. Adjudicating authority had not disputed that the respondents had imported the goods from Chile or Indonesia origin which is substantiated by various documents insofar as invoice assay certificate and manufacture etc. There is no material available that the provisional assessment under Section 18 of the said Act was resorted for want of Country of Origin certificate. The commissioner (Appeals) had categorically observed that the Country of Origin certificate has been produced at the time of provisional assessment and therefore it was not mentioned as a required document in respect of finalization of the provisional assessment. These facts were not disputed by the Revenue in the grounds of appeals. On a query from the Bench as to how the refund has arisen in some cases the learned counsel clarified that the refunds arose in cases of excess payment made on account of higher quantity and higher value which has no relation to the dispute before us. - Decided against Revenue.

Summary

Issues Involved:
1. Leviability of duty on excess/less quantity imported.
2. Basis for transaction value.
3. Leviability of duty on other elements present in the consignment.
4. Conformity of the Certificate of Origin with the relevant notifications for claiming duty exemptions.

Detailed Analysis:

1. Leviability of Duty on Excess/Less Quantity Imported:
The adjudicating authority assessed the Bills of Entry based on the transaction value and other elements, considering various documents under the provisions of Section 18 of the Customs Act, 1962. The respondents requested provisional assessment as they could not produce final documents like the final invoice and original assay certificate. The Commissioner (Appeals) observed that the provisional assessments were not due to the absence of the Certificate of Origin but for valuation and quantity determination.

2. Basis for Transaction Value:
The adjudicating authority finalized the assessment by considering the terms and conditions of the contract between the supplier and the buyer, including unit deductions, payable contents, treatment and refining charges, and freight clauses. The Commissioner (Appeals) found that the provisional assessment was resorted to for finalizing the value and quantity, not for the Certificate of Origin.

3. Leviability of Duty on Other Elements Present in the Consignment:
The adjudicating authority denied the benefit of exemption claimed under Notification Nos. 101/2007 and 46/2011 due to non-conformity of the Certificates of Origin with the relevant notifications. However, the Commissioner (Appeals) allowed the benefit of these exemptions, noting that the Certificates of Origin were produced at the time of importation and were not required for provisional assessment.

4. Conformity of the Certificate of Origin with Relevant Notifications:
The adjudicating authority denied the benefit of exemptions under Notification Nos. 101/2007 and 46/2011, citing non-conformity of the Certificates of Origin with the prescribed rules. The Commissioner (Appeals) observed that the Certificates of Origin were produced at the time of warehousing, fulfilling the requirement for claiming exemptions. The Commissioner (Appeals) also noted that the adjudicating authority did not initiate any proceedings as per the verification rules of the Certificates of Origin, nor was provisional assessment resorted to for want of these certificates.

Conclusion:
The Tribunal upheld the Commissioner (Appeals) orders, finding no substance in the Revenue's appeals. The Commissioner (Appeals) correctly allowed the benefit of the exemption notifications, as the Certificates of Origin were produced at the time of warehousing, and the provisional assessments were not due to the absence of these certificates. The Tribunal rejected all the appeals filed by the Revenue and disposed of the stay applications.