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TMI Blog2019 (7) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... n could be appropriately addressed while responding to the showcause notice. The adjudicating Authority would consider the petitioner's submissions and adjudicate upon the show-cause notice without in any manner being influenced by or controlled by the view taken by the Central Board of Indirect Taxes and Customs while communicating with the Malaysian Authorities. There is no reason at this stage to suspect that the adjudicating Authority would not grant a fair and reasonable hearing to the petitioner and also decide upon the show-cause notice fairly taking into account the petitioner's contentions. The various communications which have been referred to by the CBIC which create an apprehension in the mind of the petitioner that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2009 to determine the country of origin from where the goods are imported. 3. The grievance of the petitioner is that the show-cause notice is without jurisdiction. The basis of the petitioner's complaint that the impugned show-cause notice is without jurisdiction are essentially two fold : (i) The impugned notice under the said Act seeks to overwrite the provisions of a treaty entered between the Government of India and Government of Malaysia being the ASEAN India Free Trade Agreement (AIFTA); (ii) The Customs Authority cannot go behind the certificate issued by a competent Authority. It is the certificate issued under the AIFTA which enables the petitioner to claim the benefit of Notification No.46/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 24 provides for a dispute settlement procedure which is to be invoked by the Governmental Authority in the importing and exporting countries. 6. Mr. Nankani, learned Senior Counsel appearing in support of the petition submits that the impugned show-cause notice is without jurisdiction in as much as the Treaty entered into between India and ASEAN countries inter alia provides for the reason that the Government of India has not accepted the certificate of origin in respect of the Tin Ingots issued by the operative Authority in Malaysia. However, the Authorities in Malaysia have continued to stand by the Certificate of origin issued by the appropriate Authority in Malaysia. Thus, leading to a dispute between the two Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue Intelligence vide letter dated 11th March, 2017 to which was annexed a copy of letter dated 21st March, 2017 which inter alia recorded that as the desired response has not been received from the country of origin, the benefit under the Notification, preferential treatment could be denied by invoking Rule 16A of the Notification No.189/2009. In further support, he placed reliance upon a communication dated 12th July, 2018 addressed by the Central Board of Indirect Taxes of Customs to the Malaysian Authorities wherein the board has informed the Authorities that the justification provided by the exporter i.e. Malaysia Smelting Corporation in support of the certificate issued by the appropriate Authority i.e. Ministry of International Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unications which have been referred to by the CBIC which create an apprehension in the mind of the petitioner that the adjudication proceedings would be an empty formalities as the CBIC has already taken a view against the petition may not be entirely justified. It is the show-cause notice which has been issued to the petitioner and it is the response of the party to the show-cause notice which would determine the faith of the show-cause notice and the prima facie view taken by the CBIC as communicated by the Government of India to Malaysian Authority or in its communication to the DRI would not govern the adjudication proceedings before the Commissioner. 9. Accordingly, the petition is dismissed. - - TaxTMI - TMITax - Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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