Custom, Excise & Service Tax Tribunal
Hemang Resources Ltd vs Jamnagar(Prev) on 1 February, 2022
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.3
Customs Appeal No.10947 of 2015
(Arising out of OIA-JMN-CUSTM-000-APP-332-14-15 dated 12/03/2015 passed by
Commissioner of CUSTOMS-JAMNAGAR(PREV))
Hemang Resources Ltd ........Appellant
Bcc House, 8/5,
Manoramaganj,
Indore,
Madhya Pradesh
VERSUS
C.C.-Jamnagar(prev) .......Respondent
Sharda House...Bedi Bandar Road, Opp. Panchavati, Jamnagar, Gujarat APPEARANCE:
Shri. Hardik Modh, Advocate for the Appellant Shri. G Kirupanandan, Superintendent (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU Final Order No. A/ 10071 /2022 DATE OF HEARING: 01.10.2021 DATE OF DECISION: 01.02.2022 RAMESH NAIR Brief facts are that the appellant purchased coal on High Seas Basis and filed a Bill of Entry claiming Nil rate of BCD under Notification No. 46/2011-Cus dated 01.06.2011 as amended by Notification No. 64/2012-Cus dated 31.12.2012. The Appellant also produced copy of certificate of Country Origin dated 05.08.2013. On verification of the Certificate of County Origin, the signing authorities found different than available in the certificate which was provided by them at the time of provisional assessment. A Show Cause Notice dated. 13.02.2013 was issued proposing confiscation of goods, demand of Customs duty along with interest and Penalty. The Additional Commissioner of Customs vide OIO dated 18.06.2014 confirmed the duty demand along with penalty and also imposed the Redemption fine of Rs. 60,00,000/- under Section 125 of the Customs Act 1962, against which the appellant preferred an appeal before the Commissioner of Customs
2|Page C/10947/2015 -DB (Appeals), Ahmedabad and he vide impugned Order-in-Appeal dated 12.03.2015 rejected the appeal of Appellant. Aggrieved, the present appeal has been filed by the Appellant before this Tribunal.
2. Shri Hardik Modh, Learned Counsel appearing on behalf of the appellant submits that due to error in HSN number informed by the Shipper, Indonesia, re-issued the certificate of origin duly signed by Indonesian Government CO Certificate issuing authority Mr. Rumaiti. In the present matter Mr. Restiawan Baihaqi, the first Indonesian Government CO Certificate issuing authority issued a clarification letter dated 26.08.2013 stating that both the signatures were authorised by their office to duly sign on certificate of origin. He also submits that AIFTA Rules 2009 prescribed the procedures to be followed in case there is doubt in respect of authenticity of the certificate. In the present matter without following due process under AIFA Rules Customs department denied benefit of the said Notification. There is no proof that certificate of Country of Origin is invalid. Since Exporting country did not response into retroactive check, the customs authority should have followed the procedure of verification visit as prescribed under Regulation 17. Without following the process, initiating action for denying benefit of exemption notification is without jurisdiction. Certificate of Country of Origin issued by Indonesia is binding upon the Customs Authority; they cannot go beyond COO in terms of AIFTA. Reliance is placed on the decisions in the case of Bombay Chemical Vs. UOI - 1982(10) ELT 171 (BOM), Bullion and Jewellers Association Vs. Union of India- 2016 (335) E.L.T. 639 (Del.), Commissioner of Customs (Import) Vs. Wings Electronics 2016 (16) SCC 641. Amendment made to Act vide Finance Act, 2020 whereby a new Section 28DA has been introduced which restricts availment of benefit of COO by Indian importers subject to proper verification by the Custom Authorities. It clears that earlier there was no such provision under Act to deny the benefit by rejecting the COO. For
3|Page C/10947/2015 -DB administration of the said new law government has notified the Customs (Administration of Rules of Origin under Trade Agreements), Rules 2020 vide Notification No. 81/2020-Customs (N.T.) dated 21.08.2020. 2.1 He also submitted a copy of circular No. 31/2016-CUS dated 12.09.2016. Provides that the signature and seals received by the Board from the Government of FTA Partner Country or through the department of Commerce to be circulated to all Chief Commissioners by the Customs V section of the Board by email. The Specimen seals and signatures are also forwarded to DRI which circulates the copies to all Chief Commissioners. Where Mr. Rumiati who signed the second certificate was the Designated Authorised signatory or not, could have been verified by the Department from their own records. The Customs department without following such process denied the benefit of exemption notification which is invalid and erroneous. The Department has allowed the clearance to M/s Nirma Ltd, on the basis of country origin certificate singed by Mr. Rumiati. He submitted the copy of bill of entry and Country of origin certificate.
3. Shri G. Kirupanandan, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order and pointed out that there were two certificates signed by different persons produced by the Appellant. As per Operational Certification Procedure (OPC) the certificate should be in proper format and no erasures or superimposition shall be allowed on the AIFTA Certificate of Origin. In the present matter Appellant mis-declared the country of origin in the bill of entry and hence the benefit of notification claimed in the bill of entry not admissible to Appellant.
4. We have heard both the sides and perused the records. We find that The Revenue has denied the Exemption Notification which is available on the basis of Country of Origin on the ground that there are two country of
4|Page C/10947/2015 -DB origin certificates issued and both were signed by different Authorities therefore, the Country of Origin Certificate is under serious doubt. The appellant have submitted that after issuance of the first Country of Origin Certificate it was signed by Mr. Restiawan Baihaqi, the certificate issuing authority of Indonesian government due to a mistake in HSN they had requested for corrected Country of Origin Certificate accordingly, a correct certificate of origin was issued, duly signed by another authority of Indonesian Government Mr. Rumaiti. It is the submission of the appellant that there is no dispute that Mr. Rumaiti was the Country of Origin Certificate signing authority; in this regard they relied upon one Country of Origin Certificate issued in favour of M/s Nirma Limited duly signed by the same authority i.e. Mr Rumaiti. We also find that Mr. Restiawan Baihaqi the first Indonesian Government Country of Origin Certificate issuing authority also issued a clarification dated 26.08.2013 stating that both the signatories were authorised by their office to duly sign on the certificate of origin. In this fact we prima facie find that the certificate of origin issued second time which is duly signed by Mr. Rumaiti appears to be genuine and authentic. However, the revenue without getting confirmation from the Indonesian government about their doubt of authenticity of the country of origin certificate concluded that the certificate of origin signed by Mr. Rumaiti is not genuine and consequently denied Exemption Notification No. 46/2011 dated 01.06.2011 and consequential demand was confirmed. We find that as per the documents submitted by the appellant it appears that there is no doubt on the authenticity of the country of origin certificate issued and signed by Mr. Rumaiti. However, to clear any doubt it is the burden on the department to get the verification from the Indonesian Government regarding authenticity of Certificate of origin which has not been discharged by the department. Therefore, in the interest of justice we give one chance to the department to get the verification from
5|Page C/10947/2015 -DB concerned authorities about the genuineness of the certificate of origin issued by Mr.Rumaiti, thereafter to pass a fresh order. Accordingly the impugned order is set aside. Appeal is allowed by way of remand to Adjudicating authority for passing a fresh order preferably within a period of 3 Months from the date of this order.
(Pronounced in the open court on 01.02.2022) (RAMESH NAIR) MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) Geeta