Custom, Excise & Service Tax Tribunal
Omega Packwell Private Limited vs C.C. Noida on 7 June, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
E-Hearing
REGIONAL BENCH - COURT NO.I
Customs Appeal No.70441 of 2022
(Arising out of Order-in-Original No.11/PR. COMMR./NOIDA-CUS/2022-23
dated 12.07.2022 passed by Principal Commissioner of Customs, Noida)
M/s Omega Packwell Pvt. Ltd., .....Appellant
(Plot No.297 & 334, Ecotech-I Extension,
Industrial Area, Kasna, Greater Noida-201308)
VERSUS
Pr. Commissioner of Customs, Noida ....Respondent
(ICD-Dadri, Gautam Budh Nagar-201311) APPEARANCE:
Shri A. P. Singh, Consultant for the Appellant Shri Sandeep Pandey, Authorized Representative for the Respondent WITH
(i)Customs Appeal No.70442/2022 (Shri Yogesh Gupta);
(ii) Customs Appeal No.70447/2022 (Shri Anil Agarwal);
(iii) Customs Appeal No.70448 /2022 (Shri Kush Agarwal, Director); (iv) Customs Appeal No.70449/2022 (Shri Manoranjan Kumar); (v) Customs Appeal No.70450/2022 (Shri Chandan Choudhary).
(Arising out of Order-in-Original No.11/PR. COMMR./NOIDA-CUS/2022-23 dated 12.07.2022 passed by Principal Commissioner of Customs, Noida) APPEARANCE:
Shri Kamaljeet Singh, Advocate for the Appellant Shri Sandeep Pandey, Authorized Representative for the Respondent CORAM: HON'BLE MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NOs.- 70331-70336/2024 DATE OF HEARING : 04 April, 2024 DATE OF DECISION : 07 June, 2024 P.K. CHOUDHARY:
Since all the six appeals are arising out of a common impugned Order-in-Original No.11/PR.COMMR./NOIDA- CUS/2022-23 dated 12.07.2022 passed by Commissioner of 2 Customs Appeal No.70441 of 2022 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 alternative sources for procurement of dry dates. It came to the notice of the Appellant that UAE is also a major producing country of dry dates. During search process of alternative sources, the Appellant came to know that one Shri Kush Agarwal, who was known to him since long, being a local trader of dry dates, established a Trading Firm at Dubai in the name of M/s GVO Global FZC for trading of dry dates. The Appellant contacted Shri Kush Agarwal and enquired from him about the supply of dry dates of UAE origin on testing basis to ascertain as to whether quality of dry dates of UAE origin would suit him or not. The first consignment of dry dates of UAE origin was supplied by M/s GVO Global to the Appellant in the month of July, 2019. With the consignment, Country of Origin Certificate was also provided along with import documents. In all the documents, UAE is the Country of Origin. Bill of Entry was filed at ICD and clearance was allowed after final assessment of duty and physical examination. The consignment was also subjected to verification by FSSAI Authorities to ensure the compliance of 3 Customs Appeal No.70441 of 2022 the FSSAI Act, Rules and Regulations made thereunder. The quality was found satisfactory by the Appellant. Second consignment was supplied by the same supplier along with all documents in the month of August, 2019. The same was also cleared by the Department.
3. Thereafter, the Appellant again imported 102.9MT dry dates from the said supplier under cover of Invoice No.GVO/EXP/078 dated 02.09.2019, Bill of Lading No. JAS 1909006690 dated 11.09.2019 and Certificate of Origin No.477287/9/19/123007 dated 02.08.2019, duly issued by the Competent Authority, to ensure that the subject goods were of UAE origin. On the basis of documents provided by the supplier, Bill of Entry No.4981646 dated 20.09.2019 was filed at ICD Dadri under Section 46 of the Customs Act, 1962, through Customs Broker M/s Trans World Cargo & Travels along with the invoice, packing list, bill of lading and certificate of country of origin for clearance of the said goods. The goods were classified under CTH 08041030 of the Customs Tariff and duty amounting to Rs.17,51,574/- was self -assessed. Rate of duty claimed for self-assessment was as BCD @20%, SWC-@10% and IGST @12%. The self -assessed Bill of Entry was selected for verification by the Assessing Officer in terms of Section 17(2) of the Act, and the declared 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-à-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 4 Customs Appeal No.70441 of 2022 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 Palm Limited1 for ascertaining country of origin. The said goods were finally seized on 18.10.2019 on the grounds that goods were of Pakistan origin but was mis-declared to be of UAE for the purpose of evasion of duty and also goods were not complying with the provisions of FSSAI (labeling and packaging) Regulation, 20112 in as much as slips tagged with the bags were not in inseparable manner which is a mandatory compliance for imported foods items as per the said Regulations. The seized goods were subsequently provisionally released against bond and Bank guarantee. In furtherance of investigation, copy of Export (Customs) Declaration was obtained from the agent of shipping line, Blue Water PTE Ltd. Singapore. Statement of Shri Yogesh Gupta, Director of the Appellant company was again recorded on 14.10.2019. Statements of the following persons were also recorded:-
i. Statement dated 26.09.2019, 30.09.2019 and 16.10.2019 of Shri Chandan Chaudhry Import Manager of M/s SS Mommy International Pvt. Ltd., ii. Statement dated 04.11.2019 & 06.12.2019 of Shri Anil Kumar Agrawal, iii. Statement dated 06.12.19 of Shri Manoranjan Kumar, iv. Statement dated 07.02.2020 of Shri Ashok Kalra, v. Statement dated 26.02.2020 of Smt. Priya Talwar.
5. As a consequence of investigation carried out by the DRI, a show cause notice3 under Section 124 of the Act, was issued on 29.09.2020 to the Appellants for confiscation of seized goods 1 ARDPL 2 FSSAI Regulation, 2011 3 SCN 5 Customs Appeal No.70441 of 2022 under Section 111(m) of the Customs Act, 19624 for mis- declaring the country of origin and for the violation of the FSSAI Regulations, 2011. Penalty under Section 112(a) and /or 112 (b) of the Act, 1962 was also proposed. Penalty under Section 114AA of the Act, 1962 was also proposed against Shri Yogesh Gupta, Director.
6. The SCN was adjudicated and the impugned OIO was passed by the Principal Commissioner of Customs, Noida Customs Commissionerate, ICD Dadri. Vide the impugned OIO, the goods imported under the said Bill of Entry were declared to be of Pakistan origin and it was also held that violation of the labeling Regulations was established as packages of dry dates were carrying slips just stapled which could be easily separated. So, confiscation under Section 111(m) of the Act, 1962 was ordered with the option to redeem the confiscated goods on payment of Redemption fine of Rs.6,00,000/-. Duty of Rs.1,68,72,486/- 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 4 The Act, 1962 6 Customs Appeal No.70441 of 2022 chemical analysis was done. The grounds for arriving at such conclusion were not shown. What are the differences between dry dates of Pakistan origin and dry dates of origin of other countries is not mentioned in the opinion. It is also not clear from the report as to who examined sample and what was the qualification of that person. What is his experience in identification of country of origin of dry dates is also not disclosed. On the basis of naked eye inspection, dry dates were declared to be of Indian sub-continent origin. Such opinion does not carry any evidentiary value. In this regard, reliance is placed on the decisions of the Tribunal in the case of Orbital Enterprises vs. Collector of Customs, Calcutta [1990 (46) E.L.T. 71 (Tri.- Cal.)] where the Tribunal has dealt the evidentiary value of expert opinion based on inspection and has observed that such opinion has no evidentiary value. Reliance is also placed on the following decisions:-
Maqsood Alam vs. Commissioner of Customs, Lucknow [2015 (324) E.L.T. 162 (Tri.-Del.)] which is further upheld by Hon‟ble Allahabad High Court as reported in [2015 (326) E.L.T. A180 (A)], Ganesh Shreshtha vs. Commissioner of Customs, Lucknow [2003 (161) E.L.T. 1025 (Tri.-Del.)], Kamkheya Trading Co. vs. Commissioner of Customs, Patna [2002 (143) E.L.T. 568 (Tri.-Kol.)], Dina Nath Maurya vs. Commissioner of Customs, Lucknow [2001 (131) E.L.T. 203 (Tri.-Kol.)].
From the above opinion, it has been submitted that it was not specific but of general nature where origin of goods was shown as of Indian subcontinent.
8. The Learned Consultant for the Appellants further contended that dry dates imported by them were accompanied with the below mentioned documents:-
i. Invoice No. GVO/EXP/078 dated 02.09.2019 issued by M/s GVO Global FZC, UAE, ii. Bill of lading No. JAS 1909006690 dated 11.09.2019 issued by Blue Water Lines Pvt. Ltd., 7 Customs Appeal No.70441 of 2022 iii. Certificate of Country of Origin No.477287/9/19/123007 dated 02.09.2019 issued by Ajman Chamber of Commerce, UAE. In the invoice, „Origin of goods‟ is shown to be UAE and port of loading of goods is Jebel Ali Port in UAE. In the Bill of Lading, port of loading was shown to be Jebel Ali, UAE. A Bill of Lading is document issued by shipping lines in support of receipt and shipment of goods in Ship. It confirms that material of the said invoice was loaded at ship in UAE, not in Pakistan. In the Certificate of Origin, issued by the Competent Authority 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 fraudulently. Without any enquiry, the certificate of origin cannot be rejected. It is a settled position that certificate of country of origin is an authentic document to ascertain the origin of goods. In support of the above, reliance is placed on the decision of the Hon‟ble Kerala High Court in the case of Chalissary Kirana Merchant vs. U.O.I. [2015 (323) E.L.T. 556 (Ker.)] where it has been held that certificate of country of origin should be preferred 8 Customs Appeal No.70441 of 2022 over mere suspicion to decide country of origin of goods. Other decisions relied upon are:-
Vikrant Tyres Ltd. vs. Commissioner of Customs, Chennai [2006 (196) E.L.T. 178 (Tri.-Chennai)], J.K. Imports vs. Commissioner of Customs, Mumbai [2004 (173) E.L.T. 372 (Tri.-Del.)], Diamond Traders vs. Commissioner of Customs, Chennai [1999 (111) E.L.T. 921 (Tri.-Mad.)].
9. The Ld. Consultant for the Appellants further submitted that as per the Bill of Lading, the cargo, in question, was transported from JEBEL ALI port to Mundra Port by Blue Water Lines Pvt. Ltd. Export Declaration relating to said consignment was purportedly obtained by the DRI from the shipping line, i.e., Blue Water Lines Pvt. Ltd. It was contended that the copy is an unsigned document and has not been procured from the Dubai Customs but from shipping line. Export declaration is required to be submitted by every exporter to the jurisdictional Customs, not to the shipping line. In the said Export Declaration, country of origin was declared as „PK‟ which was understood as Pakistan. The Consultant pleaded that there were many errors in the said Declaration like in the column "consignee/exporter", name of „SEA PRINCE LOGISTICS LLC‟ is mentioned whereas in the bill of lading consignee name is shown as Omega Packwell Pvt. Ltd. It is also evident from the invoice that the exporter is M/s GVO Global FZC. Sea Prince Logistics LLC is neither consignee nor exporter. Name of consignor was shown as ABROA Shipping Services LLC while consignor was Omega Packwell. Similarly, C&F value of goods is shown to be USD 44247/ in the said document whereas in the invoice C&F value of goods is mentioned to USD 64827/. In the end of document, total value is shown to be AED 163404.17. He thus argued that said Declaration was not authentic. The country of origin cannot be accepted to Pakistan on the aforesaid document which was full of mistakes and errors. Declaration 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 9 Customs Appeal No.70441 of 2022 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 Agarwal, Manager, M/s Padam Parmeshwari Ventrue Pvt. Ltd. and Shri Chandan Chaudhry, Import Manager, M/s SS Mommy International Pvt. Ltd. to prove allegation of mis- declaration of country of origin in respect the goods imported in the present case, the Ld. Consultant of the Appellants contended that Shri Anil Kumar Agarwal was not holding any authority in supplier company, M/s GVO Global FZC. He was Manager of M/s Padam Parmeshwari Venture Pvt. Ltd., Ghaziabad where Shri Kush Agarwal owner of the supplier company was a director. Except that in some cases, documents of importers received from supplier company, M/s GVO Global FZC, UAE, in M/s Padam Parmeshwari Ventures were delivered to CHA or importers, he was not any other thing. When he was not having any locus standi in the business of supplier, his statement cannot be considered as conclusive evidence to arrive at any conclusion regarding country of origin. It was also emphasized that Shri Anil Kumar Agarwal retracted his statement on very next day.
10 Customs Appeal No.70441 of 2022Hence, his statement has no evidentiary value. In support of the above contention, the following decisions have been relied upon:-
i. Decision of the Hon‟ble Supreme Court in the matter of Mohtesham Mohd. Ismail [2007 (220) E.L.T. 3 (S.C.)], ii. Decision of the Hon‟ble Supreme Court in the case of Vinod Solanki Vs. U.I.O. [2009 (233) E.L.T. 157 (S.C.)]. In view of the above facts and settled legal position it is claimed by the Appellant that retracted statement cannot be used to prove any offence.
11. The Ld. Consultant for the Appellant vehemently argued that the statement of Shri Chandan Chaudhary, Manager M/s SS Mommy International Pvt. Ltd. clearing and forwarding agency, who filed BE on behalf the Appellants was based on hearsay only. He formed opinion on the basis of whispering in the office. He did not have any cogent reason to declare the consignment of dry dates handled by him of Pakistani origin. It is legally settled that statement based on hearsay or assumption or presumption cannot be treated as valid evidence. In this context reliance is placed on the decision of the Tribunal in the case of Habib Uz Zaman vs. Commissioner of Customs, New Delhi [2021 (376) E.L.T. 666 (Tri.-Del.)] where it has been held that statements of co-noticee cannot be adopted as legal evidence and statement is of the nature of hearsay. The Hon‟ble Madras High Court in the 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.
11 Customs Appeal No.70441 of 2022In 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 Adjudicating Authority held that the said slips were not tagged in inseparable manner. It was emphasized that slips were securely affixed. It was contended that proper officer for pointing out non-compliance of FSSAI Regulations, 2011 of an imported food item is Authorized Officer of the FSSAI. As per CBEC Circular No.9/2015-Cus dated 31.03.2015, out of charge order by Customs would be given only after receipt of Release Order from FSSAI. In the present case, the consignment of Dry Dates was referred to FSSAI for ensuring compliance of FSSAI ACT and Rules and Regulations made thereunder and the FSSAI Officer inspected the consignment and found that the FSSAI Regulations, 2011 was complied with then drew the sample and finally issued „No Objection Certificate‟ vide NOC No.NOC20190005632 dated 30.09.2019. The Counsel for the Appellants pleaded that the finding of the Adjudicating Authority regarding non-compliance of the FSSAI Regulations, 2011 was baseless and devoid of facts and the order for confirmation of non-compliance of said Regulation does not hold valid. In support of above contention reliance was placed on the following judicial decisions:-
i. Decision of the Hon‟ble Delhi High Court in the case of Alchemist Food Ltd. vs. Additional Commissioner of Customs [2017 (356) E.L.T. 38 (Del)], ii. Amrut Distilleries Ltd. vs. Authorized Officer, Chennai Seaport & Airport [2016 (335) E.L.T. 19 (Mad.)], iii. Unlimited Nutrition Pvt. Ltd. vs. Commissioner of Customs [2016 (334) E.L.T. 255 (Del.)].12 Customs Appeal No.70441 of 2022
In view of the above Ld. Consultant concluded confiscation of goods is improper.
13. On the issue of imposition of penalty under Section 112(a) of the Act, 1962, the Ld. Consultant argued that penalty is imposable on a person when he does such action which makes the goods liable to confiscation. In the instant case, the Appellants declared the country of origin as per information provided by the supplier of goods. There is no evidence at all to show that the Appellant had any connivance with the supplier to mis-declare the country of origin. In all documents viz., invoice, packing list, slips placed on packages, country of origin certificate etc., the country of origin was shown to be UAE. Accordingly, in the bill of entry, country of origin was declared as UAE. The goods were assessed and examined by the Customs Officers as well as by FSSAI officer and no one pointed 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.)]. Finally, the Ld. Counsel prayed to quash the impugned order being illegal and improper.
13 Customs Appeal No.70441 of 202215. Ld. Authorized Representative of the Respondent contended that the observation of mis-declaration of country of origin as UAE was supported by the expert opinion, declaration made in Export Declaration and confessional statements of Shri Chandan Chaudhary and Shri Anil Kumar Agarwal. It was further contended that dry dates as per the above evidences were of Pakistan origin but in connivance of Shri Kush Agarwal, owner of the supplier company, the Appellants mis-declared country of origin with an intent to evade higher rate of customs duty as applicable on the goods of Pakistan origin. He also argued that Pakistan origin dry dates were re-routed through Dubai as is evident from entry of „FZ Transit Out‟ in Export Declaration. He also contended that slips attached with bags of dry dates were not securely fixed. Hence, violation of FSSAI Regulations, 2011 was undoubtedly established. He submitted that the order of confiscation of goods under Section 111(m) of the Act, 1962 was legally correct and sustainable. He also supported the imposition of penalty upon the Appellants. He reiterated findings given by the Adjudicating Authority and concluded that impugned OIO was proper, legal and maintainable.
16. Heard both sides and perused the appeals records. All the six appeals are based on common evidences and have common facts, therefore, all the six appeals are decided by this common order.
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 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. As per the country of origin certificate, the same was issued by Ajman Chamber of commerce after verification of goods. At Sl.No.12 of the certificate, it has been certified by the Competent Authority of Ajman Chamber of Commerce, UAE that evidences produced 14 Customs Appeal No.70441 of 2022 before them satisfy that the said goods originate in the country shown in the certificate which is UAE in the present case. It shows that the said certificate was issued after proper 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 reason to believe that the country of origin criterion stated in the certificate of origin has not been met or the claim of preferential rate of duty made by importer is invalid; or
(c) verification is being undertaken on random basis, as a measure of due diligence to verify whether the goods meet the origin criteria as claimed:
Provided that a verification request in terms of clause (b) may be made only where the importer fails to provide the requisite information sought under rule 5 by the prescribed 15 Customs Appeal No.70441 of 2022 due date or the information provided by importer is found to be insufficient. Such a request shall seek specific information from the Verification Authority as may be necessary to determine the origin of goods.
(2) Where information received in terms of sub-rule (1) is incomplete or nonspecific, request for additional information or verification visit may be made to the Verification Authority, in such manner as provided in the Rules of Origin of the specific trade agreement, under which the importer has sought preferential tariff treatment.
(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:
(a) timeline as prescribed in the respective trade agreement;
or
(b) in absence of such timeline in the agreement, sixty days from the request having been communicated.
(4) Where verification in terms of clause (a) or (b) of sub-rule (1) is initiated during the course of customs clearance of imported goods,
(a) T he preferential tariff treatment of such goods may be suspended till conclusion of the verification;
(b) T he verification Authority shall be informed of reasons for suspension of preferential tariff treatment while making request of verification; and
(c) T he proper officer may, on the request of the importer, provisionally assess and clear the goods, subject to importer furnishing a security amount equal to the difference between the duty provisionally assessed under section 18 of the Act and the preferential duty claimed.
(5) All requests for verification under this rule shall be made through a nodal office as designated by the Board.
16 Customs Appeal No.70441 of 2022(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 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 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:-
17 Customs Appeal No.70441 of 2022"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 set aside and accordingly the same is set aside."
The Tribunal in the case of Alfakrina Exports vide Final Order No.11759/2023 dated 23.08.2023(Tri - Ahmd) on the issue of non-acceptability of Country of Origin Certificate for deciding origin of goods held that the Certificate of country of origin cannot be discarded without checking its authenticity and benefit if any cannot be denied.
In view of the above settled legal position, we hold that goods, in question, were of UAE origin and confiscation of goods on the ground of mis-declaration of country of origin is not sustainable.
18. The Adjudicating Authority has also held that non- compliance of FSSAI Regulations, 2011 in respect of dry dates imported by the Appellants established as slips tagged with bags showing mandatory particulars were not securely affixed. Circular No.9/2015-Cus dated 31.03.2015 issued by CBIC 18 Customs Appeal No.70441 of 2022 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, 20115 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 Rules and Regulations made thereunder. The FSSAI Authorized Officer inspected the consignment and found that the FSSAI Regulations, 2011 was complied with, then, drew the sample and finally issued „No Objection Certificate‟ vide NOC No.NOC20190005632 dated 30.09.2019. It is certified in the NOC as:-
"This office has no objection if the product mentioned above is released from this port as the result of the inspection /analysis shows that the sample conform to the specification under the FSSAI Act and rules and regulations."
From the above it is established that the proper agency, i.e., FSSAI was fully satisfied with the compliance of the FSSAI Regulations, 2011 in respect of dry dates imported under the said bill of entry. The allegation of the DRI regarding non- compliance of the FSSAI Regulations, 2011 is, therefore, baseless and devoid of facts and the order for confirmation of non-compliance of said Regulation does not hold valid. In the ri5 FSSAI Regulations, 2011 19 Customs Appeal No.70441 of 2022 case of Unlimited Nutrition Pvt. Ltd. vs. Commissioner of Customs [2016 (334) E.L.T. 255 (Del.)], it has been observed by the Hon‟ble Delhi High Court that FSSAI is the Authority to clear food items relating to compliance of the FSSAI Regulations.
19. It is further observed that the goods imported under the said bill of entry were physically examined by the Inspector (Exam. Shed) and Superintendent (Exam. Shed) before allowing the clearance and the same were found proper. As per para-1 of chapter-3 of the Customs Manual, it is responsibility of the Examining Officer to check import cargo to confirm the nature of goods, valuation and other aspects for ensuring the compliance of restriction. As per para 4.3 of chapter 8 of the Customs Manual, customs during examination shall exercise „general checks‟ and if products are not found to be satisfying requirements, clearance will not be allowed. In para 4.4 of chapter 8 of the Manual, „General check‟ includes verification of product to ensure compliance of labeling requirement also. Examining officers did not express any discrepancy regarding non- compliance of the FSSAI Regulations, 2011. It proves beyond doubt that there was no non-compliance of the FSSAI Regulations, 2011 in the present case. The confiscation order on account of non-compliance of FSSAI Regulations, 2011 is, therefore, invalid.
20. In the present case, confiscation of goods has been ordered under section 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 20 Customs Appeal No.70441 of 2022 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 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. In this context, reliance is placed on the decision of the Tribunal in the case of Agarwal Industrial Corporation Ltd. vs. Commissioner of Customs, Mangalore [2020 (373) E.L.T. 280 (Tri.-Bang.)] where it has been observed that "Mis-declaration of country of origin - Confiscation, redemption fine and penalty - Bitumen shipments loaded in Iran imported through Karwar Port but UAE declared as country of origin - Bitumen not prohibited goods either under the Act, 1962 or Foreign Trade Policy or any other law in force at time of importation of goods - Importer filing bill of entry on basis of documents supplied to him by supplier based at UAE - No document produced by Revenue on record to show involvement of importer in any way in said mis-declaration country". In the case of Dharam Steels Services Pvt. Ltd. vs. C.C. (Import), Nhava Sheva [2013 (297) E.L.T. 291 (Tri.-Mum.)], the Tribunal has held that declaration made in bill of entry as per invoice and packing list of overseas supplier does not show any mis- declaration by the importer and goods are not liable to confiscation. The Tribunal in the case of Penshibao Wang P. Ltd. vs. Commissioner of Customs (Seaport-Import), Chennai [2016 (338) E.L.T. 597 (Tri.-Chennai)] has observed that declaration made in the bill of entry as per invoice and other documents does prove mis-declaration by the importer if goods are found different. In the case of Wings Electronics vs. Commissioner of Customs, Mumbai [2006 (205) E.L.T. 1146 (Tri.-Mum.)] the 21 Customs Appeal No.70441 of 2022 Tribunal has held that "the assessments made cannot be reopened now for valuation by taking the shelter of mis- declaration of country of origin as USA when goods were marked as Australia, subsequent to the clearance by the proper officer having assessed & cleared the goods after examination & not having taken cognizance of the said mis-declaration of country of origin. There was & is no mis-declaration of the import. Proceedings of confiscation & duty demands therefore cannot be upheld & are to be set aside." The decision has also been upheld by the Hon‟ble Supreme Court as per report [2015 (323) E.L.T. 450 (S.C.)]. The Apex 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 who happened to be a major exporter of dry dates to Indian market was stopped as the same became unviable. The Appellants started import of dry dates of UAE origin from Dubai based M/s GVO Global FZC, after increase in rate of customs duty on the import of dry dates of Pakistan origin, under sale contracts executed between the Appellants and M/s GVO Global. The goods i.e., dry dates were supplied 22 Customs Appeal No.70441 of 2022 under cover of import documents including country of origin certificate issued by the approved Competent Authority of the exporting country, phytosanitary certificate etc. In all said documents country of origin was declared as UAE. Dry dates were cleared after final assessments of BEs, physical examination and after NOC from FSSAI Authorities regarding compliance of FSSAI Act/Rules/Regulations. Dry dates imported under bill of entry No.4981646 dated 20.09.2019 at ICD Dadri was seized and were confiscated on the basis of three evidences namely, (i). expert opinion obtained from Atul Rajasthan Date Palm Ltd., (ii). Export Declaration which was obtained from the shipping line and (iii). statements of Chandan Chaudhary and Anil Kumar Agarwal which were indicating, as per the Adjudicating Authority, that the said goods were of Pakistan origin but the same was mis-declared to be of the origin of UAE. It is found that on the aspect of country of origin of dry dates imported by the Appellants, opinion given by ARDPL, Jodhpur is as follows:-
"On opening and upon physical examination the above representative samples, based upon my experience, my opinion regarding country/ area of origin is Indian sub- continent".
ARDPL is engaged in production and marketing of tissue culture raised date palm plants with the aim to enhance the economy and ecology of the arid regions of India as per details available on its website www.ardp.co.in. It is not any scientific laboratory having expertise in identification of origin of dry dates. It is further noticed that experience and qualification of the person inspecting sample was not disclosed. In absence of such declaration, it is very difficult to recognize him as an expert. The opinion has been issued only on the basis of visual inspection without carrying out any chemical analysis. Differences between dry dates of UAE origin and of other areas have not been discussed.
As per the provisions Section 45 of the Indian Evidence Act, when the court has to form an opinion upon a point of foreign 23 Customs Appeal No.70441 of 2022 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 question were of Pakistan origin. It is simply gives opinion that they are of Indian Sub-continent is an imaginary geographical and political demarcation. It has no definite boundary. It is only a loose concept consisting of nearby area of India, Bhutan, Nepal, Bangladesh, Sri Lanka, Maldives, Pakistan and Afghanistan. The report is quite vague and it cannot be presumed that the goods in question are of Pakistan origin. The said expert opinion thus should not have been relied upon.
We further find support from the decision of the Tribunal in the case of Orbital Enterprises vs. Collector of Customs [1990 (46) E.L.T. 71 (Tri.-Cal.)] where it has been categorically held on the basis of Supreme Court decision (AIR 1959SC488) that opinion based on inspection only without any chemical examination has no evidentiary value for determination of country of origin. In view of the above, findings of Original Authority to declare dry 24 Customs Appeal No.70441 of 2022 dates of not UAE origin on the basis of said opinion is not sustainable.
22. The Original Authority placed heavy reliance on the Export Declaration which was received from the shipping line which was engaged in sea transportation 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 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 25 Customs Appeal No.70441 of 2022 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 market and can store them at Free Zone for export. Such locally procured goods stored in Free Zone would also be exported declaring „FZ Transit Out‟ declaration in Export Declaration. 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. We, therefore of the view that on the basis of the said declaration, it cannot be inferred that said goods were originated in third country.
24. The Adjudicating Authority has placed reliance on the statement of Shri Chandan Chaudhary, Manager, M/s SS Mommy International Pvt. Ltd., a clearing and forwarding agency to prove the allegation of mis-declaration of country of origin of dry dates. We find from the statement of Shri Chandah Chaudhary that it is based on the discussion among staff that goods imported by the Appellants were of Pakistan origin. It is evident that his statement about country of origin was based on hearsay without any evidence. 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 similar view has also been taken by the Tribunal in the case of Chandreswar Prasad vs. Commissioner of Customs, Patna [2016 (340) E.L.T. 590 (Tri.- Kol.)] where it has been held that statements on hearsay basis without any authenticity cannot be a valid evidence. The conclusion drawn by the Adjudicating Authority on the basis of 26 Customs Appeal No.70441 of 2022 the said statement is not supported by legal provisions. Hence, it has no evidentiary value.
25. Statement of Shri Anil Kumar Agarwal Manager, M/s Padam Parmeshwari Ventures Pvt. Ghaziabad, where Shri Kush Agarwal, owner of M/s GVO Global FZC UAE, is one of directors was also relied upon by the Adjudicating Authority on the contention that he is nephew of Shri Kush Agarwal. It is an undoubted fact that Shri Anil Kumar Agarwal has no locus standi in the business of supplier company i.e., GVO Global. From his statement, it is evident that he was directed by Shri Kush Agarwal at times to deliver letters received from GVO Global to importers who purchased goods from the company of Shri Kush Agarwal. There is no evidence in any form like electronic 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 supported by documentary evidence. Thus, reliance of Original Authority on the above statements is legally not maintainable.
26. We further find that statement of Shri Anil Kumar Agarwal was immediately retracted by him. As per the retraction, he was 27 Customs Appeal No.70441 of 2022 threatened and was told that he would not be allowed to go out of office till he would write as per dictation of the officers. It was further stated that the whole statement was written by him as dictated by the officers to save himself from mental torture. The cardinal principle of acceptance of a statement as evidence is the statement has to be voluntary and it should be true. The retraction of Shri Anil Kumar Agarwal was rebutted by the team of Inquiry Officer without stating any cogent reason. During the investigation the statement is recorded with the help of Section 108 of the Act, 1962 and if the same is retracted later on then it cannot be used against the maker of the statement if the same is not rebutted by the Department. The Hon‟ble Supreme Court in the matter of Mohtesham Mohd. Ismail [2007 (220) E.L.T. 3 (S.C.)] held that even confession of an accused is not a substantive evidence. The statement is part of the evidence only if it is voluntary and free from any sort of pressure. In the case of Francis Stanly @ Stalin vs. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram [2006 (13) SCALE 386], Apex Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. The Hon‟ble Apex Court in Vinod Solanki Vs. U.I.O. [2009 (233) E.L.T. 157 (S.C.)] again cautioned in using the retracted statement. The relevant para is as follow:-
"22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded."
In view of the above facts and settled legal position it is crystal clear that retracted statement cannot be used to prove any offence.
28 Customs Appeal No.70441 of 202227. 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 any angle, it is but obvious that the Adjudicating Authority has been injudicious and peremptory in imposition of the impugned penalty under Section 114AA ibid, since, unless it is proved that the person to be penalized has knowingly or intentionally implicated himself in use of false and incorrect materials, there can be no justification for penalty under this Section. This requirement of factual finding itself is not there and nor has it been answered satisfactorily either in the show cause notice or in the orders of the lower authorities and hence, I do not have any hesitation in setting aside the same."
29. Similarly in the case of Ismail Ibrahim vs. Commissioner of Customs, Bangalore [2019 (370) E.L.T. 1321 (Tri.-Bang.)], the Tribunal has observed that the penalty under Section 114AA can only be imposed if the person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular. Shri Gupta has not made intentionally 29 Customs Appeal No.70441 of 2022 any false sign or declaration, incorrect statements or declarations to attract penalty under Section 114AA of the Act. Therefore, penalty imposed under Section 114AA of the Act, 1962 on him is liable to be quashed. Similarly, penalty imposed upon Shri Manoranjan Kumar, Shri Chandan Choudhary, Shri Kush Agrawal and Shri Anil Agrawal cannot be sustained and are accordingly set aside.
30. In view of the foregoing discussions, we set aside the impugned order and allow all the six appeals with consequential relief, if any, as per law.
(Order pronounced in open court on- 07th June, 2024) (P.K. CHOUDHARY) MEMBER (JUDICIAL) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) LKS