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TMI Blog2021 (11) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner(Appeals) of Customs, Kolkata, whereby the learned Commissioner(Appeals) has rejected the Appeals before him and upheld the Order-in-Original, whereby imported goods were confiscated under Section 111(o), Redemption Fine of Rs. 90,000/- under Section 125, demand of duty of Rs. 19,67,759/- and penalty of equal amount under Section 114A for past and present Bills of Entry were upheld against the Appellant importer M/s So-Hum Trading Company and a penalty of Rupees Two Lakhs was imposed under Section 114AA of the Customs Act, 1962 (hereinafter referred to as 'the Act') on the 2nd Appellant Shri Ajay Midha, the Authorized Signatory of M/s. So-Him Trading Company. 2. Briefly stated, the facts of the case are that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the year 2016 vide three Bills of Entry viz. 6671904 dated 09.09.2016, 7700933 dated 09.11.2016 and 7745037 dated 07.12.2016. DRI alleged that the value of fabrics imported from China and supplied free of cost by the Appellant was deliberately not included in the value of the goods at the time of obtaining Certificate of Origin from the Bangladeshi authorities and further if the value of fabric was considered, the content of third country origin would be more than the percentage declared in the Certificate of Origin. All the above three consignments got cleared without payment of Basic Customs Duty by availing benefit of Notification No.99/2011-CUS (supra). Statement of Shri Pramod Nahata, one of the Directors of the Customs Broking Firm, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing to pay duty under protest to cut down the cost of storage of the imported consignments. Show Cause Notice dated 20.01.2018 was issued by the Directorate of Revenue Intelligence, Kolkata Zonal Unit to the Appellant importer M/s So-Hum Trading Company, Appellant's Authorized Signatory Shri Ajay Midha and the CHA M/s ERT Shipping & Warehousing (P) Ltd.. This culminated into Order-in-Original, which confirmed all the allegations in the Show Cause Notice. The Appellants herein namely M/s So-Hum Trading Company, the importer and its Authorized Signatory Shri Ajay Midha filed Appeals before the first Appellate Authority, who rejected their Appeals. Hence the present Appeals before the Tribunal. 5. The learned Advocate, appearing on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. He vehemently argued that there is nothing on record that the Country of Origin Certificates issued by the Designated Bangladeshi Authorities have been found forged or even alleged to be forged or questioned by the Indian Authorities. No follow up was done after the imports in order to cancel or recall the same. He relied upon the decision of the Tribunal in the case of RS Industries (Rolling Mills) Ltd. vs. CCE, Jaipur-I reported in 2018 (359) ELT 698, wherein it was held that in presence of valid Certificates of Origin issued by the Competent Authority, it was not proper on the part of the Assessing Authorities in India in denying the benefit of exemption Notification. He also relied upon the decision of the Tribunal in the case of Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Ltd. v. CCE & ST, Bangalore [2019 (370) ELT 362 (Tri.-Bang.)] (f) Axiom Cordages Ltd. v. CC, NhavaSheva-II (F/O No.85727/2020 dtd.11.09.2020-Tri.-Mum)] 7. It is the submission of the learned Advocate for the Appellants that penalty under Section 114A of the Act can be imposed only if duty is short paid due to collusion or any willful misstatement or suppression of facts, which is not the case in the instant Appeal under consideration. He further states that no new documents had been found during investigation and all the relevant documents like invoices, Country of Origin Certificate duly authenticated by the Bangladesh Chamber of Commerce and Industry, viz. Export Promotion Bureau, Bangladesh etc. were always available with the Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods under Bill of Entry No.2321708 dated 05.07.2017 as the letter dated 16.07.2017shows that the Country of Origin Certificate for these goods had been sent back to Bangladesh for rectification which was much before the DRI's intervention on 19/22 July 2017. It is our considered view that confiscation and subsequent redemption fine for Bill of Entry No.2321708 dated 05.07.2017 is un-warranted and cannot be sustained. Further, penalty under Section 114A of the Act cannot be sustained in respect of these consignments since there is no case of duty short paid due to collusion, willful misstatement or suppression of facts. 12. We observe that the Country of Origin Certificates are conclusive evidence since these are issued by the Designated Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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