2023 (9) TMI 86 - AT - Customs

Levy of Anti-Dumping Duty - import of PVC Sheeting Flex Banner (in rolls) of Malaysian origin - certificate of origin showing the goods of Malaysian origin has been proved as fake or not genuine or not - allegations based on bill of lading issued by shipping line - HELD THAT - In the present case undisputed fact is that the proper authority i.e. Malay Chamber of Commerce Malaysia has issued the certificate of origin. The authenticity of the certificate was not proved to be wrong or there is no case that the certificate of origin is fake - the submission of Learned counsel cannot be agreed upon that in case of any reasonable doubt the procedure prescribed under Rule 9 of Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Government of the Republic of India and Malaysia) Rules 2011 needs to be complied with. From Rule 9 of Rules 2011 it is mandatory that in case of any doubt about the authenticity of the certificate of origin. The Customs Authority of Government of India must request the Issuing Authority i.e. in the present case the Malay Chamber of Commerce Malaysia to check the authenticity of the certificate of origin. It is found 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. Under the identical scheme of import of goods based on certificate of origin this tribunal in the case of M/S. BDB EXPORTS PVT. LTD. SHRI NIRMAL KUMAR BHURA VERSUS COMMISSIONER OF CUSTOMS (PREV.) WEST BENGAL KOLKATA 2016 (9) TMI 1087 - CESTAT KOLKATA has held that Certificates of origin issued by the designated authority under SAPTA cannot be rejected which is the only requirement for the satisfaction of the Customs department under Notification No.105/99-Cus dated 10.08.1999. Thus 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. The impugned order is not sustainable. Hence the same is set aside appeal is allowed.

Summary

Issues Involved:
1. Authenticity and validity of the Certificate of Origin.
2. Compliance with Rule 9 of the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of The Republic of India and Malaysia) Rules 2011.
3. Departmental procedure and authority to question the Certificate of Origin.

Summary:

1. Authenticity and Validity of the Certificate of Origin:
The appellant imported PVC Sheeting Flex Banner from Malaysia and claimed a concessional rate of duty under Notification No. 53/2011-Cus dated 01.07.2011. The department alleged that the goods were of Chinese origin based on the Bills of Lading, despite the Certificate of Origin issued by the Malay Chamber of Commerce Malaysia. The appellant argued that the certificate's authenticity was not proven to be fake or non-genuine and referred to Rule 9 of the Customs Tariff Rules 2011, which mandates retroactive checks in case of doubt.

2. Compliance with Rule 9 of the Customs Tariff Rules 2011:
The Tribunal noted that the department did not follow the mandatory procedure under Rule 9, which requires the Customs Authority of India to request the issuing authority in Malaysia to verify the authenticity of the Certificate of Origin. The Tribunal emphasized that without such verification, the allegation that the goods were of Chinese origin could not be sustained. The Tribunal cited Rule 9, highlighting that goods must be directly consigned from the exporting party to the importing party or meet specific conditions if passing through a non-party territory.

3. Departmental Procedure and Authority to Question the Certificate of Origin:
The Tribunal referred to several judgments, including M/s. BDB Exports Pvt. Ltd., M/s. R. S. Industries (Rolling Mills) Ltd., and M/s. MJ Gold Pvt. Ltd., to support the view that the Customs Authority cannot unilaterally discard a Certificate of Origin without following the prescribed procedure. The Tribunal reiterated that the certificate issued by the designated authority must be honored unless proven otherwise through proper channels. The Tribunal also noted that discrepancies were only found in two out of five certificates, making the allegations against the remaining three certificates baseless.

Conclusion:
The Tribunal concluded that the department's failure to follow the prescribed procedure under Rule 9 rendered their allegations unsustainable. The impugned order was set aside, and the appeal was allowed. The Tribunal emphasized the importance of adhering to procedural requirements and respecting certificates issued by designated authorities to maintain the integrity of international trade agreements.