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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 ..... out against the Appellant/importer. Upon appreciation of evidence on record, including statements recorded during investigation of Appellant/importer and other persons, no case is made out that the Appellant/importer colluded with the exporter or its agent in fabricating or forging any document. It is further evident that the origination or import of apples from Afghanistan is corroborated also by other documents like Phytosanitary Certificates, which even mentioned route of transport, inter alia, including Dubai and Iran. Further, admittedly, Afghanistan is a landlocked country and there is no direct access with India. Further, there appears to be nothing unusual for the exporter in Afghanistan to ship the apples to Dubai for faster movement as fruits are perishable in nature. The SCN is bad for selective reliance of evidence on record. Further, we find, the Appellant/importer has imported apples under proper permit issued by the Ministry of Agriculture, Government of India, specifying the country of export as Afghanistan. These aforementioned evidences support the bonafide of Appellant/importer - the provisions of Sec 28(4) are not attracted as the conditions, precedent in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter 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 person for scientific examination. The Customs (preventive) then requested the DRI, New Delhi to get the authenticity of the certificates of country of origin verified. DRI, in turn, referred the same to CBEC now CBIC. The board vide their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 he never had any doubt about the genuineness of the documents sent by the exporter. He was under bonafide impression that the documents sent by the exporter were genuine. Further, on being questioned, he stated that he did not ask the exporter regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter 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 Dubai. 12. Rule 12(b) of SAFTA Rules provides that the products, transport of which involves transit through one or more intermediate non-contracting states, with or without trans-shipment or temporary storage in such countries, provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the exemption. Thus, it appeared to Revenue that Country of Origin Certificates are fabricated and not issued by the competent authority Afghanistan Chamber of Commerce Industry. Further, for misdeclaration, the goods appeared to be liable for confiscation. Further, the Appellant/importer has failed to provide documents in support of transit through non-contracting state, as required 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. 06.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: a) With regard to the COO of apples imported, the impugned order contends that the COO indicating the origin of goods to be of Afghanistan is fabricated, on the basis of the report given by Afghanistan Chamber of Commerce and Industry forwarded by CBEC. The contents of the said letter are reproduced hereunder for ready reference: (i) As per the letter attached 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate also mentions the name of the Appellant/importer as consignee. Such Phytosanitary certificates have not been found to be fabricated or false. 28. The Counsel for Appellant/importer also submitted the translated copy of certificate issued by ACCI certifying the export of 2000 MT of apples by Taak Cold Storage Company, Afghanistan to India. This document also corroborates 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/import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced on the ruling in the case of Saboo George vs CC, Kandla [2008 (230) ELT 535 (Tri-Del)], wherein it was held that when there is no evidence regarding intention of the Appellant/importer to evade payment of duty or his connivance with the importer to file a wrong declaration of country of origin is available, no penalty can be imposed. Thus, no grounds are available to Revenue 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, proposed enhancement in the SCN from 0.5 USD to 1.01 USD on the basis of identical goods at Nhava sheva port is bad and against the provision of law as the import at Nhava sheva port is not comparable quantity wise among other factors. In this view of the matter, there is no scope to reject the value declared in respect of finally assessed bills of entry at S.No.1, 2, 3, 7 11. 35. 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the SCN is bad for selective reliance of evidence on record. Further, we find, the Appellant/importer has imported apples under proper permit issued by the Ministry of Agriculture, Government of India, specifying the country of export as Afghanistan. These aforementioned evidences support the bonafide of Appellant/importer. We further hold that no adverse inference can be drawn from the fact that the 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 Valuat ..... 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