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TMI Blog2025 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 02.07.2019 was entered into for supply of 55 MT of dry dates at the rate of USD 630/KG. The appellant filed a Bill of Entry dated 09.08.2019 and submitted commercial invoice, packing list, fumigation certificate issued by Universal Pesticides Trading Co. (LLC), Certificate of Origin dated 16.07.2019 issued by Ajman Chamber of Commerce, UAE, and phytosanitary certificate issued by Plant Protection Organization, UAE. According to the appellant, all these documents declare that the dry dates that were being imported were of UAE Origin. 3. The appellant claims that the containers were examined by the proper officer and after due verification and on being satisfied that the declaration made by the appellant was true and correct, the goods were assessed to duty and the goods were given out of charge on payment of duty. The appellant, thereafter, sold the said consignment to buyers. 4. However, a show cause notice dated 04.12.2020 was issued to the appellant alleging that dry dates imported by the appellant were of Pakistan origin based on the Export Declaration and the container tracking report submitted by the freight forwarder. The relevant portion of the show cause notice is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 112(a)(ii)/114A of the Act, ibid. 10.2 From the perusal of the records and evidence gathered in the case, it appears that the importer colluded with his supplier and obtained country of origin certificate no. 472646/7/19/123007 dated 18.07.2019 [RUD-8] issued by Ajman Chamber of Commerce on strength of false documents. Therefore, it appears 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. Therefore, it appears 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. Thus, the importer appears to have rendered himself liable to penalty under Section 114 AA of the Act, ibid." (emphasis supplied) 5. The appellant was, therefore, called upon to show cause as to why : - "11. xxxxxxxxxx (i) the subject goods should not be held to have been originated from Islamic Republic of Pakistan and the declared classification of the goods mentioned in Bill of Entry no. 4434741 dt. 09.08.2019 under tariff item 0804 10 30 should not be rejected and why the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-19 dated 22.07.2019 issued by Federal Customs Authorities of Dubai shows that the impugned goods bore the Country of origin name as 'PK', which is a code for Islamic Republic of Pakistan. In addition to the above, the quantity of goods mentioned in the said Export Declaration was 56100 Kgs., which is exactly the same as the quantity of the impugned goods mentioned in Bill of Lading No. CCLDXBMUN18226 dated 28.07.2019, thereby validating the fact that the goods have originated in Pakistan. 15.4 I further find that the container tracking details submitted by M/s Sarang Maritime Logistics Private Limited, Freight Forwarded of the importer and container tracking details submitted by the CONCOR on 03.12.2020 indicates that the said container moved from KARACHI, PAKISTAN to MUNDRA, INDIA via JEBEL ALI. Further, Export Declaration no. DEC No. 303-04693320-19 dated 22.07.2019 indicates that the goods laden in container no. CRXU9978083 and GESU5284244 originated in Islamic Republic of Pakistan and the same were transited through UAE to India. Hence, I find that the actual origin of goods imported i.e. Dry Dates vide Bill of Entry 4434741 dated 09.08.2019 is Islamic Republic of Pakista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d provisions of Section 17(1) and Section 46 of the Customs Act, 1962 not filling truthful declarations in bill of entry and proper self-assessment under section 46(4). Therefore, I find that for the aforesaid acts of suppression of facts and submission of incorrect documents committed by the importer, the extended period of five years for demand of Customs duty under section (4) of Section 28 of the Customs Act, 1962 is invokable in this case. Therefore, I hold that the importer is liable to pay the differential Customs duty of Rs. 56,67,728/- by invoking extended period of 5 years under Section 28(4) of the Customs Act, 1962." (emphasis supplied) 11. It is this order dated 10.09.2021 that has been assailed in this appeal. 12. Shri Tarun Gulati, learned senior counsel appearing for the appellant assisted by Shri Prem Ranjan Kumar and Ms. Shruti made the following submissions: (i) No reliance can be placed on the alleged Export Declaration submitted by the freight forwarder for the reason that the Export Declaration has neither been obtained nor attested by the UAE Customs Authorities. There cannot be a presumption under section 139 of the Customs Act, 1962 for such documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 15. The issue that arises for consideration in this appeal is as to whether the dry dates imported by the appellant through invoice dated 15.07.2019 and Bill of Entry dated 19.08.2019 originated from UAE or from Pakistan. To support its claim that the goods originated from UAE, the appellant had submitted commercial invoice, packing list, fumigation certificate issued by Universal Pesticides Trading Company, the certificate of origin dated 16.07.2019 issued by Ajman Chamber of Commerce, UAE and the phytosanitary certificate issued by Plant Protection Organization, UAE. 16. The department, however, placed reliance upon two documents namely the Export Declaration provided by the freight forwarder and the container tracking report also provided by the freight forwarder. 17. The documents that were submitted by the appellant were examined by the Customs Officer and on being satisfied, out of charge order was issued and the goods were cleared on payment of duty. The authenticity of the certificate of origin has not been doubted by the competent U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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." (emphasis supplied) 19. There is nothing on the record to suggest that such verification as contemplated under the 2020 Rules was carried out with the concerned UAE Authorities to verify the genuineness and correctness of the certificate of origin. 20. This issue was examined by a Division Bench of the Tribunal in M/s. Omega Packwell Pvt. Ltd. vs. Pr. Commissioner of Customs, Noida Customs Appeal No. 70441 of 2022 decided on 07.06.2024 and it would be useful to reproduce the following observations made by the Division Bench: "17. On the issue of country of origin, we find that in all documents viz., invoice, country of origin certificate, phytosanitary certificate etc. country of origin of dry dates in present case was shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served as follows:- "9. A valid certificate has been issued and the said certificate, even as on date, has not been withdrawn or cancelled for any alleged violation of the condition by the appellant. Unless the said certificate is cancelled, the Customs Authorities cannot impose customs duty. The seizure of the equipment is only a consequential act that would follow the cancellation of the certificate issued in favour of the Appellant. So long as the certificate is not cancelled, the respondents could not, in our opinion, have initiated seizure proceedings in the case on hand. Petitioner-appellant was sent only a questionnaire and the said questionnaire has been answered by the appellant herein. No further action has been taken by the respondents. The Director General of Health Services has also not issued any cancellation of certificate as on date. In these circumstances, we are clearly of the view that without withdrawing or cancelling the certificate already issued, the present seizure cannot stand. Therefore we hold that the seizure effected by the respondents is not in accordance with law. The impugned order of the learned Single Judge, in these circumstances, requires to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as [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 decision of the Hon'ble Supreme Court in the case of East Punjab 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 have been cleared only by the UAE Authority that issued the country of origin certificate. Whether it was based on authentic documents or not certainly could not have been examined by the customs authorities as they had no documents before them. The appellant had also submitted fumigation certificate issued by Universal Pesticides Trading Co. (LLC) and the phytosanitary certificate issued by Plant Protection Organization, UAE. These two certificates also showed that the country of origin was UAE. On the other hand, the Principal Commissioner proceeded to place emphasis on an unsigned photostat copy of the Export Declaration submitted by the freight forwarder. This is a document which is submitted by the exporter before the customs authorities. If any reliance was to be placed on this document, it should have been obtained from the UAE customs authorities, but the Principal Commissioner proceeded to place reliance on a photostat copy of the document produced by the shipping line, as against the country of origin cert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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