Lilaram Gobindram vs Commissioner Of Customs (Imports)

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.E/85569/15

(Arising out of Order-in-Appeal No.3(Gr.I)/2015(JNCH)/APPEAL-II dated 18/02/2015 passed by Commissioner of Customs (Appeals-II), Mumbai)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Lilaram Gobindram Appellant Vs. Commissioner of Customs (Imports), Respondent Nhava Sheva

Appearance: Shri.C.M.Sharma, Consultant for appellant Shri.M.S.Reddy, Asst. Comm. (AR) for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of Hearing : 28/04/2015 Date of Decision : 28/04/2015

ORDER NO

Per: M.V. Ravindran

1. This appeal is directed against Order-in-Appeal No.3(Gr.I)/2015(JNCH)/ APPEAL-II dated 18/02/2015 passed by Commissioner of Customs (Appeals-II), Mumbai.

2. The relevant facts that arise for consideration are that appellant herein imported Comoros Cloves and find the bill of entry claiming benefit of Notification No.096/2008, Serial No.51 towards exemption of duty. The importer had submitted a Certificate of Origin No.14/002 dated 23/07/2014 for availing the benefit in Customs duty. It was noticed by the Customs officers that the declaration as prescribed act point No.11 of the Annexure  A of the rule line of rules of origin was not certified by the exporter from the exporting country and the authorised signatory had only certified the declaration of the export the as correct even though the exporter had made no such declaration. Holding that such a certificate had nor sanctity, and it is to be held as invalid, the lower authorities denied the preferential concessions and order was passed for assessment of the bill of entry denying the benefit claimed by the appellant. Against such an order, the appellant filed an appeal before the first appellate authority. The first appellate authority after considering the submissions made before him, by the impugned order, has held that filing of rule colour copy of the certificate of origin is not the requirement of any law, not is the requirement of getting the invoice attested by the authority issuing the certificate of origin, has also held that the certificate of origin submitted by the appellants belonging to other importers has no relevance, and that the appellant has not filed the certificate of origin as required under the law accordingly upheld the impugned order. Aggrieved by such an order importer has filed this appeal.

3. Learned Consultant appearing on behalf of the appellant brought our notice various documents, the disputed certificate of origin, as order in original and the order in appeal. After bringing to our notice radius documents, would submit that there is no dispute as to the goods imported are agricultural products which are entitled for the benefit of Notification No.96/2008 as amended. He would submit that the exporting country is in Africa and the benefit of the exemption notification is applicable which should not be denied to them. He would rely upon the judgement of the Apex Court in the case of Bharat diagnostic Centre  2014 (307) ELT632 for the proposition that once an exemption notification is applicable, a liberal approach can be adopted within the particulars of notification. It is his submission that various other importers have produced the certificate of origin as is produced by the appellant and it was accepted by the lower authorities and benefit of exemption was extended.

4. Learned departmental representative on the other hand would point out the radius deficiencies in the certificate of origin and submit that the declaration made by the authorised signatory is not a valid declaration and the rules of origin requires the certificate of origin be certified by the exporter. In the absence of any declaration by the exporter, but cannot be held that the goods sought to be imported how order generated from that country as is claimed by the importer. He would draw our attention to the findings recorded by the adjudicating authority and submit that the first certificate of origin produced was rejected and subsequently revalidated certificate of origin was produced beyond the time limit as provided in the rules.

5. We considered the submissions made at length by both sides and perused the records. On perusal of the records we find that the dispute is regarding the eligibility to avail benefit of Notification No.96/2008 as amended.

6. In order to appreciate the correct position it is required to reproduce the notification.

(i)?goods falling under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), other than those specified in the Appendix I and Appendix II appended hereto, from so much of the duty of customs as is in excess of 80 per cent. of the applied rate of duty;

(ii)?all goods of the description as specified in column (3) of the Table in Appendix I and falling under the Chapter, Heading No. or Sub-heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) specified in the corresponding entry in column (2) of the said Table, from so much of that portion of the applied rate of duty of customs leviable as is specified in the corresponding entry in column (4) of the said Table;

when imported into India from a country listed in the Schedule to this notification :

Provided that the importer proves to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be, that the goods in respect of which the exemption under this notification is claimed are of the origin of the country listed in the Schedule to this notification, in accordance with provisions of the Rules of Origin, published in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 100/2008-Customs (N.T.), dated 13th August, 2008.

Explanation. - For the purposes of this notification, applied rate of duty means the standard rate of duty specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) with respect to the goods specified in the said Table, read with any other notification for the time being in force, issued in respect of such goods under sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962).

3. Notification No.96/2008 dated 13/08/2008 was amended by Notification No.113/2011 dated 23/12/2011 whereby the Appendix I and II were substituted and the country Union of Comoros was inserted in the Schedule of the Notification.

7. It can be seen from the above reproduced notification that the said notification grants exemption of the goods falling under Customs tariff act subject to the conditions. We have perused the Appendix 1 and 2 of the said notification as also Notification No.113/2011 and are convinced that the goods sought to be imported cloves are listed in the notification as one of the goods eligible for benefit of the notification, as also the country Union of all models as one of the country eligible for benefit of notification for the importer. It is undisputed that the goods imported cloves are agricultural products and imported from the country which is finding mention in appendix the Notification No.96/2008 as amended.

8. Now we consider the documents which were produced before the lower authorities. The first document which needs to be considered is the certificate of origin which is as under.

(Please reproduce the certificate of origin at page number 52)

9. It can be seen from the above reproduced certificate of origin, the goods have been consigned from union of Comoros to the importer herein. It can also be noted that the said certificate of origin does mention the noise number issued by the exporter. We perused the said invoice annexed at page No.54 of the appeal memoranda and note that and the said invoice is the same invoice which is imported in the certificate of origin as reproduced hereinabove. Having convinced of that the certificate of origin does indicate that the goods were exported from one of the countries mentioned in the appendix to Notification No.96/2008 as amended, we now address ourselves to the lapses pointed out by the lower authorities.

10. The main contention of the Department liberal view as also of the lower authorities is that the said certificate of origin is not signed at point No.11 by the exporter. As can be seen from the above reproduced certificate of origin, the said certificate has been signed by the African, it is house Ltd. It is to be seen that the procedure for presentation of certificate of origin under the duty free tariff difference scheme for the least developed countries at Annexure-B lays down the procedure which we reproduce.

The certificate of origin shall be issued by the relevant issuing authority of the exporting country at the time of exportation, or within 3 working days from the date of shipment, whenever the products to be exported can be considered originating in that country within the meaning of the rules of origin for the Scheme.

In exceptional cases where a certificate of origin has not been issued at the time of exportation or within 3 working days from the date of shipment due to involuntary errors or omissions or other valid causes, the certificate of origin may be issued retroactively but no longer than 45 days from the date of shipment, bearing the word Issued Retroactively.

The Following time limit for the presentation of the certificate be observed:

a) The validity of the certificate of origin shall be twelve months from the date of its issuance.

b) Certificate of origin must be submitted to the Customs Authority within the validity period.

Where the certificate of origin is submitted after the expiration of the validity of the certificate of origin, such certificate is still to be accepted when failure to observe the time limit results from force majeure or other valid reasons beyond the control of the exporter.

In all cases, the relevant Customs Authority in India may accept such certificate of origin provided that the products have been imported before the expiry of the validity of the certificate of origin.

The discovery of minor discrepancies between the statements made in the certificate of origin and those made in the documents submitted to the Customs Authority of India for the purpose of carrying out the formalities for clearance of import, the products shall not ipso facto invalidate the certificate of origin, if it does in fact correspond to the said products.

11. It can be seen from the above reproduced procedure that authorities have been given instructions which is read holistically would mean that minor discrepancies would not ipso facto invalidate the certificate of origin if the same in fact correspondence to the product imported. It can be seen that the certificate of origin needs to be issued by the government authorities designated by the government of sporting beneficiary country. In the case in hand, as already held by us the certificate of origin has been insured by African, what it is house Ltd seems to us to be an authority appointed by the union of Comoros. This order view is fortified from the fact that identical goods imported at radius places were certified by the same issuing authority. We also find that the revenue authorities have not disputed the issuing authorities credentials in the impugned orders.

12. We find that the goods which are imported by the appellant are eligible for the benefit of Notification No.96/2008 as amended by the said benefit is being denied only for the procedural discrepancies. We find strong force in the contentions raised by the learner consultant that the ratio of the judgement of Honble Supreme Court in the case of Bharat diagnostic Centre (supra) will apply in this case. With respect we reproduce the ratio in paragraph No.5 With regard to the interpretation and construction of a notification granting exemption, it is settled that at the first instance, strict interpretation would apply, that is to say in the case of ascertaining its applicability. Thereafter, the Court may adopt the liberal approach within the particulars of the said notification. The case of Gammon (I) Ltd. v. Commr. of Customs, (2011) 12 SCC 499 = 2011 (269) E.L.T. 289 (S.C.), reiterated the well-settled position of law that a provision providing for an exemption has to be construed strictly. The following cases would, further make the position of law clear on this point.

13. In view of the foregoing and in the peculiar facts and circumstances of this case, the said aside the impugned order with a direction to the lower authorities to assess the bill of entry extending the benefit of Notification No.96/2008 as amended and allow the clearances of the goods imported.

14 Order to be given by DASTI (Pronounced in Court)

(P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial)

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