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TMI Blog2024 (2) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, it appeared that the Country of Origin Certificate (hereinafter referred to as COO) was not genuine as the same appears to be not issued by the Afghanistan Chamber of Commerce and Industry (ACCI). It appeared that the Appellant/importer have claimed ineligible exemption. It further appeared that in case of some consignments, the value of Apple declared at the load port - shipping bill filed at Dubai, was on higher side, compared to the value declared in India by the importer. 3. It appeared to revenue, on preliminary verification of the COO submitted with the bills of entry at the time for assessment, that the signature of the issuing authority in the certificate of origin was comparable, but did not fully match with the specimen signature of the issuing authority available in the records. Revenue referred the matter for opinion of Government Examiner of Questioned Documents (GEQD). The GEQD at Central Forensic Science Laboratory, Hyderabad, vide their reply dated 09.03.2015, expressed inability to give opinion based on the photocopies of documents sent to them, instead sought original copy of documents for comparison and also of the specimen signature of the concerned pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trading and M/s Marhaba of Dubai. That the rate negotiation was made over telephone, Internet. That at the time of importing for the first time from Afghanistan, he came to know about the Customs Duty exemption. That the Customs broker - V.V.S. Global Forwarders did the clearance work, who was given the documents namely invoice, Bill of lading, certificate of country of origin and phytosanitary certificate, as received by the Appellant/importer. On being confronted about the fabricated nature of COO, Mr Ansari stated that he was not aware of the fabricated nature of the certificates. That on receipt of the documents from the exporter, the same were used for filing the bills of entry for clearing the consignments. That he had never thought of doing business using fabricated/forged documents for evading duty. That he was surprised to know that his exporter had given him fabricated documents. That he was in the business for last several years and enjoys good reputation. He is nowhere involved in the fabrication of documents - COO, and intends to take action against the exporter. 7. Further statement of Mr. MA Ansari was recorded on 15.06.2015, wherein, inter alia, stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exemption of custom duty available under Notification No. 99/2011-Cus. They took due care in clearing the import consignments. That the documents including COO and phytosanitary certificate were received in original from the Appellant/importer and taking the credentials of the original certificates, they filed the bills of entry. They had no role to verify the genuineness of the documents nor they had any occasion to doubt the genuineness of the documents. Further, they were under bonafide belief based on the original documents, hence they signed the declaration in the bill of entry. 11. Out of total 20 import consignments of apples (including past consignments) from Afghanistan, 3 consignments, whereby, containers were belonging to M/s APL. Upon enquiry with regard to the containers covered under the 3 bills of entry No. 5010666, 5010662, 5011164 all dated 26.03.2014, the bills of lading were found to be issued by APL, Dubai. Similarly with respect to the other 17 import consignments, which were covered by Maersk line India Private Ltd, Mr D Ganesh, Senior Executive, imports, appeared and, inter alia, confirmed that these bills of lading were issued by their counterpart at Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red of the apples in some of the shipping bills filed at Jabel Ali port, Dubai and in the bills of entry in India. With respect to the following bills of entry, it appears that the value of the goods declared in the shipping bill at Dubai was higher. S. No. Bill of Entry No. & date Invoice value declared to Krishnapatnam Customs Port (in USD) Value declared to Dubai Customs (in USD) Differential Value (in USD) 1 5010662/ 26.03.2014 24016.85 227711.75 3694.90 2 5010666/ 26.03.2014 45935.50 55118.25 9182.75 3 5011164/ 26.03.2014 76079.25 88053.00 11973.75 4 5295461/ 24.04.2014 78405.75 78757.50 351.75 5 7785923/ 23.12.2014 71500.00 83429.40 11929.40 6 8424924/ 25.02.2015 76081.70 84168.70 8087.00 16. From the aforementioned table, the first 5 bills of entry were finally assessed. The 6th bill of entry was provisionally assessed with higher value (loaded value) than the declared value, basing on the contemporary value at Nhava Sheva port. It appeared that the declared value is fit to be rejected, except the 6th bill of entry aforementioned, in terms of Rule 12 of the Customs Valuation Rules 2007. The aforementioned bills of entry were ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired under Rule 12 of SAFTA Rules read with Art 18 of SAFTA Procedures. Accordingly, it appeared that the goods are liable for confiscation under Sec 111(o) of Customs Act. Further, appeared that Appellant/importer has undervalued in case of 5 bills of entry as aforementioned and as such, the goods are liable for confiscation under Sec 111(m) of the Act. Further, it appeared that the Appellant/importer is liable for penalty under Sec 112, Sec 114A and Sec 114AA of the Customs Act. It further appeared that the Appellant/importer has fabricated invoices to indulge in under-valuation as well as fabricated Country of Origin Certificates and has submitted incorrect declaration in bills of entry. Thus, Appellant/importer appeared to be liable for penalty under Sec 114AA of the Act. 19. SCN dt. 06.12.2016 was issued proposing to reject declared value in respect of 5 bills of entry mentioned at S.No.1, 2, 3, 7 & 11 of Annexure-I with proposal to re-determine the value in terms of Rule 9 of Customs Valuation Rules with proposal to demand differential duty under Sec 28(4) of Customs Act. 20. Further proposal to reject declared value in respect of 5 bills of entry (provisionally assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to F.No.456/11/2014-Cus.V dt.26.05.2015: "As we appraised and compared the stamp, signature, contents and Ref.No. of the attached certificates of origin in our database and we found out that these Certificates of origin have been fabricated by Taak Co Ltd and all of these 15 certificates were not issued by ACCI and are not credible and we kindly request you to suspend the custom process of the mentioned." (ii) As per the letter attached to F. No. 456/11/2014-Cus.V dt.17.07.2015: "ACCI really appreciate your ongoing cooperation regarding the Certificate of Origin and we would like to inform you that the attached certificates have not been issued by ACCI and the signature and stamp have been fabricated by Taak Co. Ltd.". b) A perusal of the above communication received from ACCI indicates that the COO certificates were fabricated by Taak Co. Ltd. Therefore, it is contended that the COO was fabricated by the exporter; that said letter nowhere indicates that the apples were not of Afghanistan origin. c) Therefore, while relying on the above communication, the Adjudicating Authority ought to have considered the fact that the said certificates were fabricated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the apples have originated from Afghanistan. It is further urged that the Appellant/importer had no occasion to doubt the authenticity of the certificate of origin supplied by the shippers, in view of the aforementioned supporting documents. Further, it is matter of record that even GEQD (Forensic Examiner) could not find any apparent difference in the signatures on the certificate of origin with the sample signatures available with the customs. The whole allegation of Revenue is based on report received from ACCI. Evidently, the customs authorities, at the time of assessing bills of entry, found that the certificates of origin are in order and matching with the specimen signatures available with them at Krishnapatnam Port. Thus, there is no case of any malafide made out against the Appellant/importer. There is no material available on record justifying the allegation of suppression or misdeclaration of facts within the knowledge of the importer/Appellant. Learned Counsel relies on the Ruling of Coordinate Bench of this Tribunal in the case of Hetero Drugs Ltd vs CC [2004 (171) ELT 134 (Tri-Bang)]. 29. Further, it is matter of record that the Revenue has not brought any docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for invoking extended period of limitation. 31. It is further urged that admittedly, apples are not grown in Dubai and definitely the apples are grown in Afghanistan and hence, the allegation of Revenue that apples have originated from Dubai has no legs to stand. The reliance by Revenue on the statement of Shri Ganesh - freight forwarder, that goods may be of Dubai origin, is misplaced without any basis. Further, Revenue failed to examine its witness, as required under Sec 138B(2) of the Act. Appellant/importer further relies on the ruling in the case of CC, Mumbai vs RB Jewellery Corporation [2006 (206) ELT 983 (Tri-Mumbai)], wherein it has been held - where there is no collusion or suppression, there is no scope to invoke extended period. This ruling has been affirmed by the Hon'ble Apex Court as reported in [2015 (325) ELT 463 (SC)]. 32. So far the issue of under-valuation is concerned, learned Counsel urges - in the impugned order, customs duty has been demanded by revising/ increasing the value in respect of 5 bills of entry at S.No.1, 2, 3, 7 & 11 of Annexure-I to SCN, and the value declared by Appellant/importer was accepted in respect of 5 bills of entry at S.No.16 to 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly, Revenue has accepted the declared value at S.No.4 to 6, 8 to 10 & 12 to 15 of Annexure-I to SCN and they were finally assessed accepting the declared values. Thus, Revenue has erred by adopting 3 different valuation methods for the same goods imported by the Appellant/importer from the same exporter in Afghanistan. 36. As regards cess, it is urged that the apples are classifiable under CTH 0808 1000. There is no scope to levy Education & Secondary Higher Education Cess in respect of apples in terms of Notification No.69/2004-Cus read with Notification No.28/2007-Cus, which was valid during the period of import before being rescinded in the year 2018. 37. Opposing the Appeal, learned AR for Revenue relies on the aforementioned allegations and findings in the Impugned Order. He further urges that it was the onus of the Appellant/importer to produce a proper certificate of origin duly issued by competent authority from the country of origin. Further, the Appellant/importer failed to produce any supporting documents of transportation from Afghanistan to Dubai leaving a glaring gap in support of their contentions. In case of goods originating from contracting state under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant/importer made payment to the counterpart/ agent at Dubai representing the exporter at Afghanistan. In this view of the matter, we hold that the provisions of Sec 28(4) are not attracted as the conditions, precedent in the said section, are not available to Revenue like fraud, suppression, misstatement, etc., with intent to evade duty. 42. As regards valuation, we hold that the enhancement is bad as no differential duty was proposed on account of revaluation in the SCN. We also hold that the shipping documents at Jabel Ali port, Dubai are not the prescribed documents under the Customs Valuation Rules. We further find that the declared transaction value has been rejected on surmises in violation of the provisions of Sec 14 of the Customs Act read with Rule 12 of the Valuation Rules. We further find that Revenue has not fully relied upon the shipping bills/documents filed at Dubai port, which also mentions the country of origin as Afghanistan. Further, in some of the shipping documents the declared value at Dubai port is lesser than the declared transaction value in India. In this view of the matter also, rejection of transaction value and enhancement of value on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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