Zubair Hashmi Trading Vs Principal Commissioner of Customs (CESTAT Delhi)
CESTAT New Delhi held that Goods Declaration GD-1 (Transhipment Permit) is a sufficient document to establish the origin of the goods imported from Afghanistan. Accordingly, the benefit of the exemption Notification No. 99/2011-Cus dated 9.11.2011.
Facts-
M/s Zubair Hashmi Trading filed this appeal to assail Order in Original dated 26.05.2022 passed by the Principal Commissioner of Customs (Preventive) New Delhi deciding the Show Cause Notice dated 18.04.2022 issued to the appellant whereby the benefit of the exemption Notification No. 99/2011-Cus dated 9.11.2011. was denied to the goods imported by the appellant, differential duty of Rs. 95,55,958 was demanded under section 28(4) of the Customs Act along with interest under section 28AA. Further, the imported goods were confiscated under sections 111(m), 111(o) and 111(q) but were allowed to be redeemed on payment of fine of Rs. 3,76,000 under section 125 and penalties were imposed under sections 114A and 114AA.
Conclusion-
We find that the Goods Declaration GD-1 (Transhipment Permit) dated 21.02.2022 filed before the Pakistan Customs authorities, a copy of which was produced before us, has a detailed examination report indicating that 505 bags of Colchicum loaded from Afghanistan in Truck No. TKL 426 and sealed with seal no. 217876 on 21.02.2022 were examined and permitted to be shipped in Container No. It is signed by the Superintendent of Pakistan Customs and Principal Appraiser of Pakistan Customs (presumably at Karachi Port) and it also bears the signature of the Customs Officer at Chaman (Afghanistan- Pakistan border). This document provides sufficient evidence to establish that the goods which were transported from Afghanistan on 16.02.2022 through the border at Chaman on 21.02.2022 in a Customs bonded truck were examined at Karachi port by the Customs Officers on 25.02.2022. The Container Number and other details in this document match with the Bill of Lading issued by the Shipping Line on the basis of which the Bill of Entry was filed by the appellant importer. This document also mentions the Truck No. and seal under which the goods had moved under Customs bond from Chaman (Afghanistan- Pakistan border) to Karachi Port. In our considered view, the chain of documents is complete to establish that the origin of the goods was Afghanistan and that they were exported from Afghanistan, transited through Pakistan, stuffed in a container in Karachi Port and transhipped in a vessel to India.
Indian Customs cannot insist that the importer has to get a document issued by the Afghanistan Government also signed/ endorsed by the Pakistan Customs and there is no such requirement in the exemption notification.
FULL TEXT OF THE CESTAT DELHI ORDER
M/s Zubair Hashmi Trading1 filed this appeal to assail Order in Original dated 26.05.2022 passed by the Principal Commissioner of Customs (Preventive) New Delhi deciding the Show Cause Notice dated 18.04.2022 issued to the appellant whereby the benefit of the exemption Notification No. 99/2011-Cus dated 9.11.2011. was denied to the goods imported by the appellant, differential duty of Rs. 95,55,958 was demanded under section 28(4) of the Customs Act along with interest under section 28AA. Further, the imported goods were confiscated under sections 111(m), 111(o) and 111(q) but were allowed to be redeemed on payment of fine of Rs. 3,76,000 under section 125 and penalties were imposed under sections 114A and 114AA.
2. The undisputed facts of the case are that the appellant imported Colchicum (Saanjan) Grade 3” and filed Bill of Entry No.7821136 dated 03.2022 at Inland Container Depot2, Tughlakabad to clear the goods claiming the benefit of Notification No. 99/2011-Cus dated 9.11.2011. which exempted the goods originating in Afghanistan from the whole of duty of Customs. The goods were detained, documents were called for, and statements were recorded by the officers of the Commissioner of Customs (Preventive) and a Show Cause Notice was issued to the appellant which culminated in the impugned order.
3. The undisputed legal position is that goods imported from Afghanistan are exempted from the whole of duty by Notification No. 99/2011-Cus dated 9.11.2011. and that all goods originating in or exported from Pakistan are classifiable under Customs Tariff Heading 98060000 and are chargeable to customs duty @ 200% in view of the Notification No.5/2019 dated 16.02.2019 issued under Section 8A of the Customs Tariff Act, 1975. It must be noted that the Notification No. 99/2011-Cus dated 9.11.2011. exempting the goods imported from Afghanistan fully from duty is issued under section 25(1) of the Customs Act, 1962 which empowers the Central Government to grant exemptions. Notification No.5/2019-Customs dated 16th February 2019 covering the goods imported from Pakistan was issued under Section 8A of the Customs Tariff Act, 1975 which gives the Government emergency power to increase import duties. These sections and the notifications issued under them read as follows:
Section 25 of the Customs Act
Section 25. Power to grant exemption from duty. –
(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon.
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Notification No. 99/2011-Cus dated 9.11.2011.
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), and in supersession of the notifications of the Government of India, in the Ministry of Finance (Department of Revenue), No. 51/2008-Customs, dated the 21st April, 2008 [G.S.R. 297(E), dated the 21st April, 2008] and No. 85/2011- Customs dated 6th September, 2011 [G.S.R. 662(E), dated the 6th September, 2011], except as respects things done or omitted to be done before such supersession, the Central Government, being satisfied that it is necessary in public interest so to do, hereby exempts all goods other than those mentioned in the ANNEXURE to this notification, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India from a country listed in APPENDIX to this notification.
Provided that the importer proves to the satisfaction of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, that the goods, in respect of which the benefit of this exemption is claimed, are of the origin of the country listed in the APPENDIX in accordance with the Rules of Determination of Origin of Goods under the Agreement on South Asian Free Trade Area (SAFTA), 2006, published in the notification of the Government of India in the Ministry of Finance (Department Revenue) No. 75/2006-Customs, (N.T.), dated the 30th June, 2006.
Annexure
