2019 (5) TMI 1588 - AT - Customs

Safe Guard duty on import of aluminium foil - benefit of N/N. 71/2009-Cus. - HELD THAT - Admittedly N/N. 71/2009 dated 19-06-2009 exempted colour laminated aluminium foil from Safe Guard duty w.e.f. 23-03-2009 and Appellant s import was made and goods were cleared in between the two dates but none of the documents produced before the Customs Authorities for customs clearance reveal the description of item was colour coated aluminium foil. Admittedly there no such occasion at the time of clearance to draw representative sample, as there was no dispute concerning application of Safe Guard duty on the imported goods which occurred due to subsequent notification with retrospective effect. The use of slash between two categories of goods brings confusion as to which of those two categories was imported vide invoice under reference. More importantly, the annexed document to such certificate containing description of goods indicated that it was of silver colour which is usually the colour of normal aluminium foil - the appellant failed to substantiate with cogent evidence that it had imported colour coated laminated aluminium foils to make it eligible for exemption from Safe Guard duty. Appeal dismissed - decided against appellant.

Summary

Issues:
Refusal of Commissioner of Customs to grant benefits of Notification No. 71/2009-Cus. exempting Safe Guard duty on import of aluminium foil.

Analysis:
The case involved the refusal of the Commissioner of Customs to grant benefits of Notification No. 71/2009-Cus. to the Appellant, exempting Safe Guard duty on the import of aluminium foil. The Appellant, a manufacturer of laminated sheets, imported aluminium foils from China, which were duly assessed. Subsequently, Safe Guard Duty was imposed on the Appellant, which was discharged. The Appellant filed an appeal before the Commissioner of Customs (Appeals) seeking the benefit of the exemption notification, but it was refused. The rejection was primarily based on the grounds that the imported goods were not proven to be colour coated aluminium foils and that the sample provided was not representative. The Appellant argued that all varieties of aluminium foil fall under CTH7607, but colour coated aluminium foils were not manufactured in India, justifying the exemption. The Appellant also presented a certificate from the overseas supplier stating the imported goods were colour coated aluminium foil.

The Tribunal noted that the exemption for colour laminated aluminium foil was effective from a date prior to the Appellant's import, but none of the documents submitted for customs clearance specified the goods as colour coated aluminium foil. The Tribunal found that no representative sample was drawn at the time of clearance as there was no dispute regarding the application of Safe Guard duty until the subsequent notification. The Appellant's submission of a sample before the Tribunal was insufficient to establish a link between the imported goods and the sample. Additionally, the certificate from the overseas supplier was not considered substantial evidence as it was not produced during the appeal hearing and lacked clarity on the type of goods imported. The Tribunal concluded that the Appellant failed to provide sufficient evidence to qualify for the exemption, leading to the dismissal of the appeal and confirmation of the Commissioner's order.

In conclusion, the Tribunal upheld the Commissioner's decision, emphasizing the lack of concrete evidence to support the Appellant's claim for exemption from Safe Guard duty on the import of colour coated aluminium foil. The case highlights the importance of providing clear and verifiable documentation to substantiate claims for duty exemptions in customs matters.