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TMI Blog2024 (8) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Annexure-III (ibid) of the relevant free trade agreement.' Since the facts and charges levelled in those cases and in the present case are identical, the ratio of the above decision are directly applicable in the present case - the impugned orders are not sustainable - Appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri N. A. J. V. Shyam Babu , Advocate for the Appellant Shri Rajesh Nathan , Assistant Commissioner ( AR ) for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the appellant have imported Alkalised Cocoa Powder and filed bills of entry. 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 and Notification No. 53/2011-Cus dated 01.07.2011 under FTA benefit on import of Cocoa powder from Malaysia. Show cause notices dated 19.06.2019, 26.09.2019 27.08.2019 came to be issued for allegedly wrongly availing custom duty benefit. The adjudicating authority passed the Orders-In-Original dated 11.12.2019, 13.12.2019, 16.12.2019 whereby the differential duties were confirmed and penalties were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 35% in respect of cocoa powder supplied from Malaysia is not fulfilled however to support this allegation no verification was carried out by the department. All the cases were made out on the basis of one case i.e. Morde Foods Pvt Ltd. Vide Order No. 126/2016-17/CC/NS-I/JNCH dated 02.02.2017. However, subsequently not only the case of Morde Foods Pvt Ltd. all the other cases made out on the same line has been decided in favour of the assessee by extending the benefit of Notification 46/2011. Therefore, the issue is no longer res-integra. Some the judgments are cited below: Shriazee Traders Final Order No. 12060 of 2023 dated 15.09.2023 The matter in this case pertains to import made by the appellants of cocoa powder which at the relevant time was covered under free trade agreement. The same as per certificate of origin produced before us was wholly obtained in Malaysia. The Customs Authority after going through the documents at Mundra port allowed clearance on 07.12.2014. In the subsequent investigation done by the department 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% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive check at random or when it has reasonable doubt as to the authenticity of the certificate of origin or as to the accuracy of the information regarding the true origin of the goods in question or of certain parts thereof. (2) The request for a retroactive check shall be accompanied with the relevant certificate of origin and shall specify the reasons and any additional information suggesting that the particulars given on the said certificate of origin may be inaccurate, unless the retroactive check is requested on a random basis. (3) The Issuing Authority of the exporting Party shall, on receipt of such request, conduct a retroactive check on the cost statement of the exporter or the producer based on the current cost and prices and shall send a reply to the customs authority of the importing Party within three months of the date of receipt of request. (4) The retroactive check process, including the actual process and the determination of whether the subject goods are originating or not, should be completed and the result 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the country of origin of imported goods. The said SCN also proposed to demand penalty under Section 112(a) and 114A, 114AA of Customs Act, 1962. 1.2. The submissions made by the appellant were rejected vide Order-in Original No. MCH/ADC/AK/89/2019-20 dated 07.01.2020 and confirmed the demand of duty with interest and further imposed penalty under section 114A of the Customs Act, 1962. The subsequent appeal filed by the appellant also came to be rejected by the Appellate Commissioner vide impugned OIA No. MUN-CUSTM-000- APP-171-20-21 dated 09.03.2021. The appellant is therefore before this Hon'ble Appellate Tribunal contesting the said Order-inAppeal on various grounds. 2. Shri Hardik Modh, learned Advocate appearing on behalf of the appellant submits that, the demand of Custom Duty with interest is beyond the limitation period as stipulated under proviso to Section 28(1)(a) under Customs Act,1962. All the facts relevant for the purpose of assessment are known to the department and the proper officer allowed the exemption. The allegation that the appellant has deliberately mis-declared country of origin as Malaysia is ex-facie arbitrary, illegal and without any basis. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the impugned order. 4. On careful consideration of the submission made by both the sides and perusal of record, we find that even though the appellant has made strong prima facie case on the merit but appeal can be disposed of on the threshold point of the time bar. We find that the certificate of origin was provided by the exporting Country i.e. Malaysia. For which the appellant have no control. It is Governmental Authority of exporting country who after consideration of various aspects of value addition issued country of origin certificate. 4.1. The facts behind issuance of country of origin neither the appellant are aware of the fact nor they are legally suppose to know the same. At the time of filing the Bill of Entry the appellant have to submit the documents including the country of origin certificate which the appellant have scrupulously complied. If there is doubt in the mind of customs they could have issued show cause notice within the normal period of limitation, as per proviso to Section 28 (4) of Customs Act. However, in the present case the show cause notice was issued beyond the normal period of limitation. 5. Moreover, on the merit also there is no stric ..... X X X X Extracts X X X X X X X X Extracts X X X X
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