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TMI Blog2024 (6) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... e, phytosanitary certificate etc. country of origin of dry dates in present case was shown UAE. Slips tagged with bags of dry dates were showing country of origin of the goods UAE. No enquiry was conducted by the Department to prove that country of origin certificate duly issued by the Competent Authority of the exporting country was fake - No evidence was brought out to infer that country of origin shown in the said phytosanitary certificate was incorrect. Bags of dry dates were found, during physical verification, carrying slips on which country of origin was mentioned as UAE. Mere suspicion is not enough to discard aforesaid documents. Nothing has been placed on record by which it can be said any verification request has been made by the custom authorities with concerned authorities in UAE to verify the genuineness and correctness of the Certificate of Origin issued by them. In view of the above concrete proofs regarding country of origin, we hold that said goods were of UAE origin. In the case of Challissari Kirana Merchant [ 2015 (4) TMI 686 - KERALA HIGH COURT] , the Hon ble Kerala High Court has held that for determination of country of origin due weightage should be given o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate of country of origin, declaring therein country of origin UAE provided by the suppler. There was no mala fide on the part of the importer. The importer has declared country of origin as was informed by the overseas supplier in import documents. The import of dry dates is neither prohibited under the Act, 1962 nor under the Foreign Trade Policy. It has already been settled in series of judicial decisions that if the importer files bill of entry on the basis of information provided in invoice and other documents, charge of mis-declaration does not survive - The declaration made in the bill of entry as per invoice and other import document cannot be treated as mis-declaration when there is no proof of involvement of the importer. It is further submitted that there is also no violation of the provisions of the FSSAI Regulation, 2011. Hence, the goods i.e., dry dates were not liable to confiscation under Section 111(m) of the Act, 1962. In the present case, dry dates were procured from local market of Dubai by M/s GVO Global FZC UAE, a Free Zone company, and stored at Free Zone for export to Indian buyers as is evident from country of origin certificate. Thus, on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of a common impugned Order-in-Original No.11/PR.COMMR./NOIDA-CUS/2022-23 dated 12.07.2022 passed by Commissioner of Customs, Noida, they are taken up together for hearing on merits with the consent of both sides. 2. Briefly stated, the facts of the case are that the Appellant No.1 is a manufacturer of chopped/cut dry dates and supplies them to manufacturers of mouth freshener. The Assessee is duly registered with GST for payment of GST on supplies of chopped dry dates. Dry dates were normally procured by the Appellant from local traders. Dry dates were generally imported in India from Pakistan and gulf countries. With effect from 16.02.2019, rate of import duty on all goods imported from Pakistan or of the origin of Pakistan was enhanced to 200% vide Notification No.05/19-Cus dated 16.02.2019. Due to such steep hike in import duty, import of dry dates from Pakistan became uneconomical and it was almost dispensed with. It resulted into heavy shortage of dry dates in local markets of India. Therefore, the Appellant was not getting sufficient dry dates from local sources due to its paucity in local markets. To meet out its requirement of dry dates, the Appellant tried to find out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red value was enhanced by 22%, approximately, and duty was re-assessed to be Rs.22,26,974/-. The re-assessed duty was, thereafter, deposited and goods were physically examined by the Officers on 25.09.2019. The goods were found to be proper and correct vis- -vis declaration made in the BE and other import documents submitted along with the BE. The goods being food items were also examined by the FSSAI Officer to ensure compliance of the FSSAI Regulations and NOC was issued by them. However, before out of customs charge order, the consignment was ordered to be kept on hold by the DRI. 4. The goods were again physically examined on 04/05.10.2019 by the Officers of the Directorate of Revenue Intelligence, Noida under Panchnama dated 04.10.2019. As per the Panchnama, goods were packed in gunny bags and each bag was found to be tagged with slip carrying name of exporter and importer, gross weight, net weight, Country of Origin as UAE and FSSAI No. Representative samples of the goods were drawn for further enquiry. Statement of Shri Yogesh Gupta, Director of the Appellant company, was recorded on 04.10.2019. During the investigation, the DRI forwarded sample to one Atul Rajasthan Date Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,72,486/- was also demanded under Section 125(2) of the Act, 1962. Penalty of Rs.2,00,000/- was imposed under Section 112(a) of the Act, 1962. Penalty of Rs.2,00,000/- was also imposed upon Shri Yogesh Gupta under Section 114AA of the Act, 1962. Hence the present appeals before the Tribunal. 7. Shri A.P. Singh, Consultant, argued the case for the Appellants and contended that in the SCN and also in the impugned order, reliance is placed on the opinion given by ARDPL. ARDPL is a private company with 26% shareholding of Rajasthan Government. It is an organization which is involved in activity to enhance production of dates in Indian desert by way of tissue culture plantation. It is not a scientific laboratory to identify Country of Origin of dates. He further contended that instead of getting the sample tested from any accredited lab, the Department preferred to send the sample for testing to some unknown organization for the reasons best known to the Department. Referring the opinion given by ARDPL that dry dates were of Indian sub-continent, he pleaded that the opinion was given only on the basis of naked eye inspection. No chemical analysis was done. The grounds for arriving at su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of UAE, origin of the said goods has been shown to be UAE. A certificate of origin is an authentic document to ascertain the country of origin in international transactions. The certificate was issued by Ajman Chamber of Commerce which is an approved body for issuing certificate of country of origin in UAE. Ajman Chamber is member of International Chamber of Commerce which is an international organization for foreign trade and have all types of experts. A certificate issued by ICC or its associate must have evidentiary value. A Certificate of Origin is a legal document declaring the originating country where goods or commodities are manufactured or produced. The certificate of origin contains information regarding the product, its designation and the country of export, it is a certificate which is widely used for international trade transactions, which is issued by the originating country (i.e. home country). In the certificate of origin submitted in the present case, there is also mention of website for verification of the said certificate. There is no indication in the SCN and also in the impugned order that the certificate of origin presented in the current case was obtained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed by the shipping line at the port cannot be treated as declaration of the supplier. Declaration of supplier is invoice and certificate of origin. On the basis of shipping line‟s documents, allegation of evasion cannot be proved. In support of the above contention reliance is placed on decision of the Tribunal in the case of Sugnadhi Sniff King [2019-TIOL-2655-(Tri.-ALL]. Decision of the Tribunal in the case of Sulekh Ram Steels Pvt. Ltd. vs. Commissioner of C. Ex., Ahmedabad-II [2011 (273) E.L.T. 140 (Tri.-Ahmd.)] was also referred. Besides above, the following decisions are also relied upon:- Charminar Bottling Co (P) Ltd. vs. Commissioner of C. Ex., Hyderabad-II [2005 (192) E.L.T. 1057 (Tri.-Del.)], Rama Shyama Papers Ltd. vs. Commissioner of C. Ex., Lucknow [2004 (168) E.L.T. 494 (Tri.-Del.)], Wings Electronics [2005-TIOL-593- (Tri.-MUM)], East Punjab Traders [2002-TIOL-658-SC-CUS]. It was also contended that the conclusion drawn by the Adjudicating Authority that the goods in the instant case were transshipment goods on the basis of mention on FZ Transit Out‟ was improper and devoid of facts. 10. On the aspect of reliance on the statement of Shri Anil Kumar A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of A S Textiles Ltd. vs. Commissioner of Central Excise, Coimbatore [2017 (356) E.L.T. 571 (Mad.)] has held that statement based on hearsay basis is not sufficient to establish an allegation relating to short payment/non-payment of duty. In the case of Laxmi Narayan Udyog (P) Ltd. vs. Commissioner of Customs (Prev.), Kolkata [2017 (348) E.L.T. 496 (Tri.-Kol.)], the Tribunal has held that hearsay evidence cannot be accepted as reliable evidence for deciding issue against the Appellant. The Tribunal in the case of Chandreswar Prasad vs. Commissioner of Customs, Patna [2016 (340) E.L.T. 590 (Tri.-Kol.)] has observed that statements on hearsay basis without any authenticity cannot be a valid evidence. In view of the above, it was contended that the statement of Shri Chandan Chaudhry cannot be a valid evidence as the said statement is based on hearsay only. 12. The Ld. Consultant denied the charge of non-compliance of the provisions of Regulation 2.2.1.4 of the FSSAI Regulation, 2011. It was contended that all packages were carrying slips whereat all information as required to be declared under the FSSAI Regulation, 2011 were shown. Slip was duly stitched with every bag. The Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out about the mis-declaration of country of origin. The Appellants‟ action was bona fide. Hence, it was contended that no penalty can be imposed under Section 112(a) of the Act, 1962. 14. As regards imposition of penalty on Shri Yogesh Gupta Director M/s Omega Packwell Pvt. Ltd., it was pleaded that no witness deposed in their statements about connivance of Shri Yogesh Gupta for any mis-declaration of country of origin. Deal with the supplier was purely on commercial basis. There was no mention in any statements recorded during investigation about any involvement or connivance of Shri Gupta in manipulation of any documents. The finding of the Adjudicating Officer that Shri Yogesh Gupta intentionally and knowingly mis-declared country of origin did not find any support from any evidence. The finding was based only on presumption basis. Hence, no penalty under Section 114AA is imposable upon the Appellant. In this context, reliance is placed on the decision of the case of Sree Ayyanar Spinning Weaving Mills vs. Commissioner of Customs, Tuticorin [2019 (370) E.L.T. 1681 (Tri.-Chennai)] and Ismail Ibrahim vs. Commissioner of Customs, Bangalore [2019 (370) E.L.T. 1321 (Tri.-Bang.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r verification of origin of goods. Authenticity of the said certificate was never challenged by way of any enquiry from the exporting country. We further notice that phyotsanitary certificate which was issued by National Plant Protection Organization of exporting country also indicates country of origin UAE. No evidence was brought out to infer that country of origin shown in the said phytosanitary certificate was incorrect. Bags of dry dates were found, during physical verification, carrying slips on which country of origin was mentioned as UAE. Mere suspicion is not enough to discard aforesaid documents. Rule 6 of the Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 provide as under : Rule 6. Verification request . - (1) The proper officer may, during the course of customs clearance or thereafter, request for verification of certificate of origin from Verification Authority where: (a) there is a doubt regarding genuineness or authenticity of the certificate of origin for reasons such as mismatch of signatures or seal when compared with specimens of seals and signatures received from the exporting country in terms of the trade agreement; (b) there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e information, or within such extended period as the Principal Commissioner of Customs or the Commissioner of Customs may allow: Provided that where a timeline to finalize verification is prescribed in the respective Rules of Origin, the proper officer shall finalize the verification within such timeline. (7) The proper officer may deny claim of preferential rate of duty without further verification where: (a) The verification Authority fails to respond to verification request within prescribed timelines; (b) The verification Authority does not provide the requested information in the manner as provided in this rule read with the Rules of Origin; or (c) The information and documents furnished by the Verification Authority and available on record provide sufficient evidence to prove that goods do not meet the origin criteria prescribed in the respective Rules of Origin. Nothing has been placed on record by which it can be said any verification request has been made by the custom authorities with concerned authorities in UAE to verify the genuineness and correctness of the Certificate of Origin issued by them. In view of the above concrete proofs regarding country of origin, we hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y particulars were not securely affixed. Circular No.9/2015-Cus dated 31.03.2015 issued by CBIC provides that out of charge order by Customs would be given only after receipt of Release Order from FSSAI [para-3(v) of the Circular]. We find that import of food articles is regulated as per provisions of FSSAI (Import) Regulations, 2017. In accordance with the provisions of Regulation 6(10) of FSSAI (Import) Regulations, 2017, the Authorized FSSAI officer shall reject the consignment not complying with the provisions of Labeling and Packaging Regulations, 2011 at the visual inspection and no sample shall be drawn from the consignment. Similarly, under Regulation 9(1) of FSSAI (Import) Regulations, 2017, it has been again provided that the Authorized Officer of FSSAI shall ensure compliance with the Food Safety and Standards (Labeling and Packaging) Regulations, 2011 FSSAI Regulations, 2011 in respect of imported food items. It shows that proper officer for pointing out non-compliance of FSSAI Regulations, 2011 of an imported food item is Authorized Officer of the FSSAI. In the present case, the consignment of dry dates was referred to FSSAI for ensuring compliance of FSSAI Act and Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 111(m) of the Act, 1962 on the ground that country of origin of goods has been mis-declared. Dry dates imported, in the instant case, were ordered by the Adjudicating Authority to be of origin of Pakistan. From the records we find that dry dates were shipped by the exporter at Jebel Ali port in UAE, in invoice country of origin was shown as UAE and certificate of country of origin was also with the consignment where country of origin was declared to be UAE. During physical examination of goods, it was found that the country of origin was described as UAE on the packages. Allegation of mis-declaration of country of origin is, therefore, based on assumption and presumption only without any tangible evidence. There is also no evidence to show that the Appellant was involved in any manner to mis-declare the country of origin. The bill of entry was filed as per invoice, packaging list and certificate of country of origin, declaring therein country of origin UAE provided by the suppler. There was no mala fide on the part of the importer. The importer has declared country of origin as was informed by the overseas supplier in import documents. The import of dry dates is neither prohib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court has observed that Tribunal setting aside confiscation and redemption fine on the ground that declarations regarding country of origin were to be made by supplier/exporter and that assessment once finalized cannot be re-opened for valuation in guise of mis-declaration of country of origin. In view of above judicial decisions, it is abundantly clear that declaration made in the bill of entry as per invoice and other import document cannot be treated as mis-declaration when there is no proof of involvement of the importer. It is further submitted that there is also no violation of the provisions of the FSSAI Regulation, 2011. Hence, the goods i.e., dry dates were not liable to confiscation under Section 111(m) of the Act, 1962. 21. We find that enquiry against the Appellants was initiated on the basis of intelligence that some unscrupulous importers started importing of dry dates of Pakistan origin by re-routing the same through Dubai and by mis-declaring country of origin subsequent to hike in rate of customs duty on the import of goods of Pakistan origin or from Pakistan to 200% vide Notification No.05/19-Cus dated 16.02.2019 and due to which import of goods from Pakistan wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to form an opinion upon a point of foreign law, or of science, or art, or as to identify handwriting or finger impression, the opinion upon these points of persons especially skilled in such foreign law, science, or art in questions as to identify of handwriting or finger impressions are relevant facts. A fact is something cognizable by he senses such as sight or hearing, whereas opinion involves a mental operation. Country of origin of any goods is a complex matter and it cannot be decided by way of visual inspection of goods only. In the case of Swastic Mechatronics Pvt. Ltd. [2014(314) ELT 373(T)] Hon ble CESTAT has held that the visual examination of goods cannot be considered as expert opinion. In the case of Krishna Das [2014(303) ELT584(T)] it has been observed by CESTAT that the Country of Origin of goods cannot be decided on the basis of expert opinion given merely by visual inspection. The Tribunal in the case of Ram Prakash [2003(161) ELT882(T)] has ruled that the opinion given without indicating reason for arriving at particular conclusion cannot be accepted In the present case, the expert opinion obtained by the department does not indicate that the goods in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab Traders [1997 (89) E.L.T. 11 (S.C.)] where it has been held that in case documents are not obtained from the respective customs formation, reliance cannot be placed on such documents. In view of the above, we find reliance on the said document to prove country of origin by the Original Authority is not proper. 23. We further find that Adjudicating Authority has referred expression FZ Transit Out‟ mentioned in the Export Declaration received from shipping line to prove that the goods were imported from third country to Dubai for export to India. In para-15.1.2.3 of Customer Guide of Dubai customs which is relied upon document in this case, procedure for export of goods stored in Free Zone of Dubai is provided. Free Zone companies would file FZ Transit Out‟ declaration for export of goods stored in their company. It is not provided that only goods which are imported from third country can be exported by declaring FZ Transit Out‟. All goods irrespective procured by way of import or by way of local procurement are exported on terms FZ Transit Out‟ if such goods are stored in Free Zone. It is provided that Free Zone companies can procure goods from local mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic chat, documents etc. from which it can be proved that Shri Anil Agarwal was involved in decision making activities of GVO Global FZC. He has not accepted in his statement that he discussed and convinced Indian importers to purchase goods from GVO Global, which were of actually Pakistan origin. It is settled law that statement of any person cannot be basis for proving an offence if it is not supported by any other cogent evidence. In the case of UOI Vs. Kisan Ratan Singh [2020 (372) E.L.T. 714 (Bom.)], Hon ble High Court has held that various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. In the case of Piyush Kumar Jain Vs. UOI [2022 (382) E.L.T. 184 (ALL)], Hon ble Court has observed as mere statement cannot be sole basis for penalty. Similarly in the case of Commissioner of Service Tax, Mumbai-V Vs. Jasper International [2019 (22) G.S.T.L. 29 (Tri.-Mum.)], the Tribunal has held that no liability can be fastened merely on the basis of statements recorded during investigation if the same is not suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 27. The Adjudicating Authority has imposed penalty on M/s Omega Packwell Pvt. Ltd., under Section 112(a) of the Act, 1962. Penalty under the said Section is imposable on a person when he is involved in any action which makes goods liable to confiscation. In the present case, goods were not liable to confiscation as discussed in foregoing paras. Hence, no penalty is imposable on M/s Omega Packwell Pvt. Ltd. 28. As regards imposition of penalty on Shri Yogesh Gupta under Section 114AA of the Act, 1962, we find that penalty on a person under said Section can be imposed when such person intentionally makes false declaration before the Customs. It is observed that Yogesh Gupta declared country of origin on the basis of documents supplied by the overseas supplier. There was no manipulation by him to mis-declare country of origin. No evidence was pointed out by the Adjudicating Authority to prove any involvement of Shri Yogesh Gupta in any false declaration. Hence, no penalty under Section 114AA is imposable upon him. In the case of Sree Ayyanar Spinning Weaving Mills Commissioner Customs, Tuticorin [2019 (370) E.L.T. 1681 (Tri.-Chennai)], the Tribunal has held as : 10. Viewed from an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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