9911796707
TMI Blog2025 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... rification 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.' The facts of the present case are similar to the facts of Omega Packwell decided by the Tribunal. In the present case, the Principal Commissioner has not recorded a finding that the country of origin certificate produced by the appellant was forged and all that has been stated is that it was obtained by the appellant in collusion with the exporter by submitting incorrect documents. This finding is based purely on conjectures and surmises - The Principal Commissioner was not justified in ignoring the certificate of origin issued by the competent authority in UAE. In the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing has been brought on record to show that the appellant was aware that the goods that were imported by the appellant were of Pakistan origin and not of UAE origin. The imposition of penalty under section 114 AA of the Customs Act is, therefore, also liable to be set aside. Appeal allowed. - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON BLE MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Tarun Gulati, Shri Prem Ranjan Kumar and Ms. Shruti, Advocates for the Appellant Shri Rajesh Singh, Authorized Representative for the Department ORDER JUSTICE DILIP GUPTA : The order dated 10.09.2021 passed by the Principal Commissioner of Customs ICD (Import) TKD, New Delhi the Principal Commissioner holding that the item imported by S. S. Overseas the appellant would fall under Customs Tariff Item CTI 9806 00 00 instead of CTI 08404 10 30 and confirming the demand under section 28(4) of the Customs Act, 1962 the Customs Act has been challenged in this appeal. The Principal Commissioner has also imposed penalty under sections 114A and 114AA of the Customs Act. 2. The appellant claims that its representative negotiated with M/s. GVO Global FTZ, UAE for import of dry dates of UAE origin. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962 appears incorrect. Accordingly, the differential duty liability is worked out as under: xxxxxxxxxxxx 10. From scrutiny of the evidences discovered in this case, it appears that the country of origin of the imported goods does not match with the declaration made in the impugned bill of entry. Therefore, it appears that imported goods do not correspond with declarations made in the impugned bill of entry and thus appear liable for confiscation under section 111(m) of the Act, ibid. 10.1 The importer while filing impugned bills of entry has subscribed to a declaration regarding correctness of the contents of the bill entry under Section 46(4) of the Act, ibid. Further, Section 46(4A) of the Act, ibid casts an obligation on the importer to ensure accuracy of the declaration and authenticity of the documents supporting such declaration. In the instant case, the importer failed to discharge the statutory obligation cast upon him and made wrong declaration about the country of origin of the imported goods. Thus, it appears that the importer for his act of omission and commission, which rendered the impugned goods liable for confiscation, has rendered himself liable for penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on the strength of false documents was incorrect. The appellant also pointed out that no reliance could be placed on the Export Declaration and the container tracking report submitted by the freight forwarder. 7. The Principal Commissioner did not accept the pleas taken by the appellant and held that the imported goods originated from Pakistan. The relevant findings are reproduced below: 15.2 I find that the case emanates from an investigation by officers of SIIB which revealed that the consignment of Dry dates had originated in Islamic Republic of Pakistan and the same were transited through UAE to India with intention to suppress the actual origin of the goods so as to evade Customs duty. 15.3 With reference to the allegation of department that the origin of the goods can be traced to Islamic Republic of Pakistan, it is clearly evident that the goods are bearing the Bill of Lading No. CCLDXBMUN18226 dated 28.07.2019. The said document also had Transit goods , marked on it, thereby confirming that the goods laden in the impugned container no. CRXU9978083 and GESU5284244 had not originated in UAE. I further find that the Export declaration DEC No. 303-04693320-19 dated 22.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs duty. Therefore, I hold that goods originated from Islamic Republic of Pakistan. (emphasis supplied) 9. The Principal Commissioner, thereafter, examined the classification of the goods and observed as follows: 17. xxxxxxxxxxx. I further find that the CBIC, vide notification no. 05/2019-Customs dated 16.02.2019, amended the first schedule of Customs Tariff Act, 1975 to the effect that all the goods originating in and exported from Islamic Republic of Pakistan are classifiable under Chapter Heading 9806 00 00 and attract basic customs duty @200%. (emphasis supplied) 10. Regarding the invocation of the extended period of limitation contemplated under section 28(4) of the Customs Act, the Principal Commissioner observed as follows: 18. xxxxxxxxxx. I find that the importer, despite being aware of the correct country of origin of the goods, submitted incorrect documents regarding country of origin of the imported goods. I further find that the importer had mis-declared the country origin of the imported goods with intent to mislead the customs authorities and evade payment of correct customs duty. I find that the importer violated provisions of Section 17(1) and Section 46 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act could not have been invoked in the facts and circumstances of the case; and (viii) The Principal Commissioner committed an error in imposing penalties under sections 114 A and 114 AA of the Customs Act. 13. Shri Rajesh Singh, learned authorized representative appearing for the department, however, supported the impugned order and made the following submissions: (i) The Export Declaration dated 22.07.2019 provided by the freight forwarder and the container tracking details provided by the freight forwarder confirm that the container containing the goods originated from Karachi Port and, therefore, the actual origin of the imported goods is from Pakistan and not UAE; (ii) The Principal Commissioner had carefully examined the entire evidence on record to arrive at a finding that the imported goods originated from Pakistan; (iii) The certificate of origin was rightly discarded by the Principal Commissioner; (iv) The extended period of limitation was correctly invoked; and (v) Penalties under sections 114 A and 114 AA of the Customs Act have been correctly levied. 14. The submissions advanced by the learned counsel for the appellant and the learned authorized representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request shall seek specific information from the Verification Authority as may be necessary to determine the origin of goods. (2) xxxxxxxxxx (3) When a verification request is made in terms of this rule, the following timeline for furnishing the response shall be brought to the notice of the Verification Authority while sending the request: xxxxxxxxxx (5) All requests for verification under this rule shall be made through a nodal office as designated by the Board. (6) Where the information requested in this rule is received within the prescribed timeline, the proper officer shall conclude the verification within forty five days of receipt of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter reproducing rule 6 of the 2020 Valuation Rules, the Tribunal observed that since the procedure contemplated under the said rule had not been followed to verify the correctness of the certificate of origin, it would have to be held that the goods were of UAE origin. The relevant observations are as follows: 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. We find that in the case of Challissari Kirana Merchant (supra), the Hon‟ble Kerala High Court has held that for determination of country of origin due weightage should be given on the country of origin certificate in case of any suspicion. In the case of Yellamma Da Sappa vs. Commissioner of Customs, Bangalore [2000 (120) E.L.T. 67 (Kar.)], the Hon‟ble Karnataka High Court has observed as follows:- 9. A valid certificate has been issued and the said certificate, even as on date, has not been withdrawn or cancelled f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransportation of said dry dates from Dubai to India. In the said Export Declaration country of origin was shown PK‟ which is short form of Pakistan as per the Department. Export Declaration is filed by the exporter with customs of exporting country. The said document was not procured from the customs Dubai but obtained from shipping line. How the said document is maintained by the shipping line depends upon the shipping line as it was their internal document. It is further observed that in the said document C F value was declared to USD 44247/- while in the invoice it was USD64827/-. Consignee and consignor names were also mentioned incorrectly. It was an unsigned photocopy of document. The Export Declaration submitted in this case, reflects figures which do not match with other documents and also does not reflect name of shipping line. Hence this document which is full of errors cannot be considered to be an evidence to prove country of origin. In the case of Commissioner of Customs (Imports), Mumbai vs. Ganpati Overseas [2023 (386) E.L.T. 802 (S.C.)], the Apex Court has held that unattested photocopy would not have any evidentiary value. We also find support from the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other certificates that were submitted by the appellant indicated that the country of origin was UAE. The Tribunal also held that the procedure contemplated under rule 6 of the 2020 Valuation Rules for verifying whether the country of origin certificate was genuine had not been resorted to. The Tribunal also held that since the Export Declaration was received from the shipping line and not from the customs authority and the fact that it was an unsigned photostat copy it could not be considered as an evidence to prove the country of origin. 24. The facts of the present case are similar to the facts of Omega Packwell decided by the Tribunal. In the present case, the Principal Commissioner has not recorded a finding that the country of origin certificate produced by the appellant was forged and all that has been stated is that it was obtained by the appellant in collusion with the exporter by submitting incorrect documents. This finding is based purely on conjectures and surmises. As noticed above, a detailed procedure has been provided in the 2020 Rules for examining the genuineness of the country of origin certificate and if the customs authorities had any doubts, the same could hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e next issue that arises for consideration is whether the Principal Commissioner was justified in imposing penalties upon the appellant under sections 114 A and 114 AA of the Customs Act. 28. Penalty under section 114 A of the Customs Act can be imposed when there is short payment of duty by reason of collusion or any willful mis-statement or suppression of facts. 29. In the instant case, it cannot be said that the appellant had willfully mis-stated facts or suppressed facts. These are necessary ingredients for applicability of the provisions of section 114 A of the Customs Act. The statement was made by the appellant in the Bill of Entry on the basis of documents, and these documents had been examined by the proper officer and, thereafter, the goods were cleared on payment of duty. The imposition of penalty under section 114A of the Customs Act on the appellant is unjustified and is liable to be set aside. 30. The penalty under section 114 AA of the Customs Act could also not have been imposed upon the appellant. Section 114 AA of the Customs Act provides that if a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statem ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
