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TMI Blog2024 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... d. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Pradeep Korde, Advocate for the Appellant Shri A.R. Kanani, Superintendent (Authorised Representative) for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the appellant have imported Alkalised Cocoa Powder and filed bill of entry No. 5829047 dated 02.04.2018. The goods are from Malaysia under Custom Tariff Head 1805. The appellant claimed the benefit of Notification No. 46/2011-Cus dated 01.06.2011 under FTA benefit on import of Cocoa powder from Malaysia. A show cause notice dated 30.05.2019 came to be issued for allegedly wrongly availing custom duty benefit. The adjudicating authority passed the order-in-original dated 18.12.2019 whereby the differential duty of Rs. 8,55,792/- was confirmed and a penalty of equal amount was imposed. Being aggrieved by the said order-in-original, appellant preferred appeal before the Commissioner (Appeals) who vide impugned order dated 09.02.2021 rejected the appeal, therefore, the present appeal filed by the appellant. 2. Shri Pradeep Korde, learned counsel appearing on behalf of the appellant, at the outset, submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the basis of a DRI communication in relation to some other exporters wherein it found that in their case, goods were exported from Ghana and at least 35% of material/manufacturing was of Ghana origin. Authorities therefore suspected those certificates to be incorrect and made reference to Malaysian authorities about the authenticity of the certificates issued in those cases. On verification, in those cases Malaysian Customs Authorities expressed their inability because of non disclosure of cost data by the manufacturer to authenticate those certificates. In the present instance, show cause notice has been issued and stands confirmed by lower authorities on the basis that what transpired in those cases might have happened in this case also. There is nothing on the record to show that in present instance, the certificate of origin was sent to Malaysian Customs Authority for verification or that the goods in any case were concerned with the same set of suppliers in Malaysia as well as Ghana. 2. In view of the foregoing, the Learned Advocate pleads that the whole case of the department is based on presumptions and assumptions that all the above might have transpired in their cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be communicated to the importer within six months of the date of presentation of the certificate of origin to the customs authority of the importing Party. 4.1 We find that to displace the certificate of origin issued by the Malaysian authority, which is in the nature of documentary evidence, the verification process by the Customs Authorities of India reference to issuing authorities to do a retroactive check is required. In the present instance no such request for verification report in respect of the appellant has been brought on record. We find that this fails to comply with the requirement of the Annexure-III (ibid) of the relevant free trade agreement. 5. We are accordingly inclined to allow the appeal with consequential relief. Appeal is allowed. Global Exim Tribunal vide Final Order No. 10141 of 2024 dated 11.01.2024 Brief facts of the case are that M/s. Global Exim (appellant herein) imported Alkalised Cocoa Powder claiming FTA benefits on imports of Cocoa Powder (CTH 18050000) from Malaysia under Custom Notification No. 46/2011-Cus dated 01.06.2011 and Notification No. 53/2011-Cus dated 01.07.2011. The Bill of Entry was finally assessed and the goods were allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The allegation that the appellant has deliberately mis-declared country of origin as Malaysia is ex-facie arbitrary, illegal and without any basis. Therefore, the extended period of limitation under proviso to Section 28 (4) is not invokable. 2.1. It is submitted that the country of origin criteria as specified under Rule 3 (b) of Customs Notification No. 189/2009 - Cus (NT) dated 31.12.2009 also cover products not wholly produced or obtained in the exporting party provided that the said products are eligible under Rule 5 or 6. For the purpose of clause (b) of Rule 3, a product shall be inter alia deemed to be originating if the AIFTA content is not less than 35% of the FOB value. It is submitted that the imported goods are Alkalised Cocoa powder satisfies the country of origin criteria and therefore are eligible for concessional duty under Notification No . 46 of 2011-Cus. 2.2. He submits that ground on which benefit of exemption under custom Notification No.46/2011-Cus dated 01.06.2011 and Notification No. 53/2011/ Cus dated 01.07.2011 is denied on the assumption that value of addition by the supplier was less than 35%. Admittedly, the appellant had produced the valid COO S is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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