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2024 (5) TMI 476 - AT - CustomsLevy of Anti-Dumping Duty - Mis- declaration of the country of origin in bills of entry - import of PVC Sheeting Flex Banner (in rolls) of Malaysian origin - Penalty - Certificate of origin showing the goods of Malaysian origin has been proved as fake or not genuine or not - HELD THAT - The retroactive check by the customs authority needs to be done with the issuing authority of certificate of origin of originating country i.e. Malaysia. However, it is admitted fact that the investigating agency has not complied with the of Customs Tariff (Determination of Origin of Goods under the Preferential Trade agreement between the Government of Republic of India and Malaysia) Rules, 2011. Therefore, merely on the basis of any other material such as various statements and bill of lading, the certificate of origin issued by the Governmental Authority of Malaysia cannot be doubted. The identical issue has been considered by this Tribunal in case of Alfakrina Exports 2023 (9) TMI 86 - CESTAT AHMEDABAD wherein this Tribunal considering the various judgments and Rule 9 of Customs Tariff (Determination of Origin of Goods under the Preferential Trade agreement between the Government of Republic of India and Malaysia) Rules, 2011 held that without compliance of Rule 9, the certificate of origin cannot be discarded. It is settled that without complying the provisions of Rule 9 of Custom Tariff (Determination of Origin of Goods under the Preferential Trade agreement between the Government of Republic of India and Malaysia) Rules, 2011 the certificate of origin issued by Malaysia Government cannot be disputed. Accordingly, the entire proceeding is vitiated. Accordingly, we are of the view that the impugned order is not sustainable. Hence, the same is set aside. Appeal is allowed with consequential relief, if any, in accordance with law.
Issues Involved:
1. Mis-declaration of country of origin to evade antidumping duty. 2. Authenticity and compliance of the certificate of origin. 3. Imposition of penalty under Sections 114A and 114AA of the Customs Act, 1962. Summary: 1. Mis-declaration of Country of Origin to Evade Antidumping Duty: The investigation revealed that the appellant imported 33MT of PVC sheeting flex banner from China but mis-declared the country of origin as Malaysia to evade antidumping duty u/s Notification No. 82/2011-Cus dated 25.08.2011. The goods were cleared without paying antidumping duty, making them liable for confiscation u/s 111(m) of the Customs Act, 1962. The adjudicating authority confirmed the demand for antidumping duty and differential customs duty of Rs. 10,63,593/-, along with recovery of interest of Rs. 1,01,310/- u/s 28AA of the Customs Act, 1962, and imposed penalties u/s 114A and 114AA of the Customs Act, 1962. 2. Authenticity and Compliance of the Certificate of Origin: The appellant argued that the certificate of origin from Malaysia was genuine and not proven false or forged. The Customs Authority did not conduct an inquiry u/s Rule 9 of the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Government of Republic of India and Malaysia) Rules, 2011, which mandates a retroactive check with the issuing authority in Malaysia. The Tribunal held that without compliance with Rule 9, the certificate of origin issued by the Malaysian Government cannot be doubted. This view was supported by previous judgments, including Alfakrina Exports vs. CC - Mundra - 2023 (9) TMI 86-CESTAT AHMEDABAD, which emphasized the necessity of following Rule 9 before discarding the certificate of origin. 3. Imposition of Penalty under Sections 114A and 114AA of the Customs Act, 1962: The appellant contended that there was no evidence of prior knowledge regarding the alleged movement of goods from China to Malaysia, making the penalties u/s 114A and 114AA unjustified. The Tribunal found that the lower authorities' conclusion that the goods were of Chinese origin was based solely on the bill of lading and various statements, without any discrepancy in the certificate of origin. Consequently, the Tribunal set aside the impugned order, deeming the entire proceeding vitiated due to non-compliance with the prescribed rules. Conclusion: The Tribunal concluded that the impugned order was unsustainable and set it aside, allowing the appeal with consequential relief in accordance with the law.
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