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2024 (6) TMI 455 - AT - CustomsVerification of Certificate of Origin - Non-compliance of FSSAI Regulations 2011 in respect of dry dates imported by the Appellants established as slips tagged with bags showing mandatory particulars were not securely affixed - Confiscation of goods has been ordered under section 111(m) of the Act 1962 on the ground that country of origin of goods has been mis-declared - Retraction of statements - Penalty on M/s Omega Packwell Pvt. Ltd. under Section 112(a) of the Act 1962 - Imposition of penalty on Shri Yogesh Gupta under Section 114AA of the Act 1962. Verification of Certificate of Origin - HELD THAT - In all documents viz. invoice country of origin certificate phytosanitary certificate etc. country of origin of dry dates in present case was shown UAE. Slips tagged with bags of dry dates were showing country of origin of the goods UAE. No enquiry was conducted by the Department to prove that country of origin certificate duly issued by the Competent Authority of the exporting country was fake - No evidence was brought out to infer that country of origin shown in the said phytosanitary certificate was incorrect. Bags of dry dates were found during physical verification carrying slips on which country of origin was mentioned as UAE. Mere suspicion is not enough to discard aforesaid documents. Nothing has been placed on record by which it can be said any verification request has been made by the custom authorities with concerned authorities in UAE to verify the genuineness and correctness of the Certificate of Origin issued by them. In view of the above concrete proofs regarding country of origin we hold that said goods were of UAE origin. In the case of Challissari Kirana Merchant 2015 (4) TMI 686 - KERALA HIGH COURT the Hon ble Kerala High Court has held that for determination of country of origin due weightage should be given on the country of origin certificate in case of any suspicion. Thus the goods in question were of UAE origin and confiscation of goods on the ground of mis-declaration of country of origin is not sustainable. Non-compliance of FSSAI Regulations 2011 in respect of dry dates imported by the Appellants established as slips tagged with bags showing mandatory particulars were not securely affixed - HELD THAT - Circular No.9/2015-Cus dated 31.03.2015 issued by CBIC provides that out of charge order by Customs would be given only after receipt of Release Order from FSSAI - In accordance with the provisions of Regulation 6(10) of FSSAI (Import) Regulations 2017 the Authorized FSSAI officer shall reject the consignment not complying with the provisions of Labeling and Packaging Regulations 2011 at the visual inspection and no sample shall be drawn from the consignment. Similarly under Regulation 9(1) of FSSAI (Import) Regulations 2017 it has been again provided that the Authorized Officer of FSSAI shall ensure compliance with the Food Safety and Standards (Labeling and Packaging) Regulations 2011 - In the present case the consignment of dry dates was referred to FSSAI for ensuring compliance of FSSAI Act and Rules and Regulations made thereunder. The FSSAI Authorized Officer inspected the consignment and found that the FSSAI Regulations 2011 was complied with then drew the sample and finally issued No Objection Certificate vide NOC No.NOC20190005632 dated 30.09.2019. As per para 4.3 of chapter 8 of the Customs Manual customs during examination shall exercise general checks and if products are not found to be satisfying requirements clearance will not be allowed. In para 4.4 of chapter 8 of the Manual General check includes verification of product to ensure compliance of labeling requirement also. Examining officers did not express any discrepancy regarding non- compliance of the FSSAI Regulations 2011. It proves beyond doubt that there was no non-compliance of the FSSAI Regulations 2011 in the present case. The confiscation order on account of non-compliance of FSSAI Regulations 2011 is therefore invalid. Confiscation of goods has been ordered under section 111(m) of the Act 1962 on the ground that country of origin of goods has been mis-declared - HELD THAT - The bill of entry was filed as per invoice packaging list and certificate of country of origin declaring therein country of origin UAE provided by the suppler. There was no mala fide on the part of the importer. The importer has declared country of origin as was informed by the overseas supplier in import documents. The import of dry dates is neither prohibited under the Act 1962 nor under the Foreign Trade Policy. It has already been settled in series of judicial decisions that if the importer files bill of entry on the basis of information provided in invoice and other documents charge of mis-declaration does not survive - The declaration made in the bill of entry as per invoice and other import document cannot be treated as mis-declaration when there is no proof of involvement of the importer. It is further submitted that there is also no violation of the provisions of the FSSAI Regulation 2011. Hence the goods i.e. dry dates were not liable to confiscation under Section 111(m) of the Act 1962. In the present case dry dates were procured from local market of Dubai by M/s GVO Global FZC UAE a Free Zone company and stored at Free Zone for export to Indian buyers as is evident from country of origin certificate. Thus on the basis of the said declaration it cannot be inferred that said goods were originated in third country. Retraction of statements - HELD THAT - The cardinal principle of acceptance of a statement as evidence is the statement has to be voluntary and it should be true. The retraction of Shri Anil Kumar Agarwal was rebutted by the team of Inquiry Officer without stating any cogent reason. During the investigation the statement is recorded with the help of Section 108 of the Act 1962 and if the same is retracted later on then it cannot be used against the maker of the statement if the same is not rebutted by the Department - thus the retracted statement cannot be used to prove any offence. Penalty on M/s Omega Packwell Pvt. Ltd. under Section 112(a) of the Act 1962 - HELD THAT - Penalty under the said Section is imposable on a person when he is involved in any action which makes goods liable to confiscation. In the present case goods were not liable to confiscation. Hence no penalty is imposable on M/s Omega Packwell Pvt. Ltd. Imposition of penalty on Shri Yogesh Gupta under Section 114AA of the Act 1962 - HELD THAT - Penalty on a person under said Section can be imposed when such person intentionally makes false declaration before the Customs. It is observed that Yogesh Gupta declared country of origin on the basis of documents supplied by the overseas supplier. There was no manipulation by him to mis-declare country of origin. No evidence was pointed out by the Adjudicating Authority to prove any involvement of Shri Yogesh Gupta in any false declaration. Hence no penalty under Section 114AA is imposable upon him - Shri Gupta has not made intentionally any false sign or declaration incorrect statements or declarations to attract penalty under Section 114AA of the Act. Therefore penalty imposed under Section 114AA of the Act 1962 on him is liable to be quashed. Similarly penalty imposed upon Shri Manoranjan Kumar Shri Chandan Choudhary Shri Kush Agrawal and Shri Anil Agrawal cannot be sustained and are accordingly set aside. The impugned order is set aside - appeal allowed.
Issues Involved:
1. Country of Origin of Imported Goods 2. Compliance with FSSAI Regulations 3. Validity of Expert Opinions and Statements 4. Imposition of Penalties Summary: 1. Country of Origin of Imported Goods: The main issue was whether the dry dates imported by the Appellant were of UAE origin or Pakistan origin. The Appellant provided documents such as the invoice, bill of lading, and a Certificate of Origin from Ajman Chamber of Commerce, UAE, all indicating UAE as the country of origin. The Department, however, relied on an opinion from ARDPL and an Export Declaration obtained from the shipping line, which indicated Pakistan as the country of origin. The Tribunal noted that no verification request was made by the Customs authorities to the concerned authorities in UAE to verify the genuineness of the Certificate of Origin. The Tribunal held that the goods were of UAE origin, emphasizing that mere suspicion is not enough to discard the documents provided by the Appellant. 2. Compliance with FSSAI Regulations: The Department alleged non-compliance with FSSAI Regulations, 2011, as the slips tagged with the bags of dry dates were not securely affixed. However, the Tribunal noted that the consignment was inspected by the FSSAI Authorized Officer, who issued a No Objection Certificate (NOC) confirming compliance with the FSSAI Act and Regulations. The Tribunal held that the proper agency, i.e., FSSAI, was fully satisfied with the compliance, and therefore, the allegation of non-compliance was baseless. 3. Validity of Expert Opinions and Statements: The Department relied on an opinion from ARDPL, which was based on visual inspection and not on any scientific analysis. The Tribunal found this opinion to be vague and lacking evidentiary value. The Tribunal also noted that the Export Declaration obtained from the shipping line was full of errors and could not be considered reliable evidence. Statements from individuals like Shri Anil Kumar Agarwal and Shri Chandan Chaudhary were also found to be based on hearsay and not supported by any cogent evidence. The Tribunal emphasized that retracted statements cannot be used to prove any offense unless corroborated by other independent and reliable evidence. 4. Imposition of Penalties: The penalties imposed u/s 112(a) and 114AA of the Customs Act, 1962, on the Appellant and its Director, Shri Yogesh Gupta, were found to be unsustainable. The Tribunal noted that there was no evidence of any mala fide intention or manipulation by the Appellant to mis-declare the country of origin. The declaration in the bill of entry was made based on the documents provided by the overseas supplier. The Tribunal held that no penalty could be imposed when the goods were not liable to confiscation and there was no evidence of false declaration. Conclusion: The Tribunal set aside the impugned order and allowed all six appeals with consequential relief, if any, as per law. The goods were held to be of UAE origin, and the allegations of non-compliance with FSSAI Regulations were found to be baseless. The penalties imposed were also quashed.
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