Alfakrina Exports Vs C.C.-Mundra (CESTAT Ahmedabad)
CESTAT Ahmedabad held that merely on the basis of the bill of lading it cannot be inferred that the goods were originated from China as certificate of origin of Malaysia not proved wrong or fake.
Facts- The appellant imported PVC Sheeting Flex Banner (in rolls) of Malaysian origin and filed a total of 05 bills of entry with Custom House, Mundra. They also claimed benefit of concessional rate of duty meant for goods imported from Malaysia in terms of Notification No. 53/2011-Cus dated 01.07.2011. The goods were shipped from Port Kelang in Malaysia. The Certificate of Origin issued by Malay Chamber of Commerce Malaysia certified that goods were produced in Malaysia.
The department alleged on the basis of Bills of Lading received from Shipping Line that goods were imported into India under Bills of Lading showing port of loading as Port Kelang (for Mundra) were the same as those loaded earlier from Shanghai for Port Kelang. Anti-Dumping duty is demanded under Notification No.82/2011-Cus dated 25.08.2011 by treating the goods covered by all 05 bills of entry of Chinese origin, by brushing aside the Certificate of origin produced by the appellant.
Conclusion-
Held that the department, when made an allegation about the country of origin did not follow the procedure prescribed under Rule 9 of Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of the Republic of India and Malaysia) Rules 2011. Therefore, merely on the basis of the bill of lading whereby, it was inferred that the goods were originated from China cannot be accepted.
Held that without checking the authenticity of the certificate of origin issued by Malay Chamber of Commerce, Malaysia. The certificate of origin cannot be discarded and on that basis benefit cannot be denied. Accordingly, we are of the view that the impugned order is not sustainable. Hence, the same is set aside, appeal is allowed.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that the appellant imported PVC Sheeting Flex Banner (in rolls) of Malaysian origin and filed a total of 05 bills of entry with Custom House, Mundra. The details of Bills of Entry are (i) 7848365 dated 04.09.2012 (ii) 8226047 dated 16.10.2012 (iii) 8405328 dated 05.11.2012 (iv)8697506 dated 07.12.2012 and (v) 8697507 dated 07.12.2012. They also claimed benefit of concessional rate of duty meant for goods imported from Malaysia in terms of Notification No. 53/2011-Cus dated 01.07.2011. The goods were shipped from Port Kelang in Malaysia. The Certificate of Origin issued by Malay Chamber of Commerce Malaysia certified that goods were produced in Malaysia.
1.2 The department alleged on the basis of Bills of Lading received from Shipping Line that goods covered by Bills of Entry Nos. at Sl. Nos. (iv) & (v) were imported into India under Bills of Lading No. PKGMUN23764 and PKGMUN23765 both dated 23.11.2012 showing port of loading as Port Kelang (for Mundra) were the same as those loaded earlier from Shanghai for Port Kelang under Bills of Lading Nos. FMPL/SHA/PKG/1211006 and FMPL/SHA/PKG/1211006A both dated 05.11.2012. For the remaining 03 bills of entry, there is no such evidence. Anti-Dumping duty is demanded under Notification No.82/2011-Cus dated 25.08.2011 by treating the goods covered by all 05 bills of entry of Chinese origin, by brushing aside the Certificate of origin produced by the appellant.
2. Shri Vikash Mehta, Learned Consultant appearing on behalf of the appellant submits that the certificate of origin showing the goods of Malaysian origin has not been proved as fake or not genuine. Therefore, merely on the basis of bill of lading issued by shipping line. It cannot be concluded that the goods are not of Malaysia origin. He refers to Rule 9 of Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of The Republic of India And Malaysia) Rules 2011.
2.1 He submits that if there is any reasonable doubt the customs authority of the importer country is required to make a request to the issuing authority of the exporting country to perform retroactive check regarding authenticity of the certificate of origin or as to the accuracy of the information regarding the true origin of the goods in question. However, this mandatory provision has not been followed, therefore merely on the basis of the bill of lading the allegation that the goods is of the China origin cannot be sustained.
2.2 He submits that even in case of any doubt the departmental officer cannot sit as an Adjudicator over the certificate of origin issue by the designated authority, that certificate of origin cannot be questioned on the basis of statements of the importers and after establishing by following the procedure the certificate origin needs to be cancelled, which was not followed by the department in the present case, in support of submission he placed reliance on the following judgments:
