2025 (6) TMI 694 - AT - Customs

Upholding the re-assessment u/s 17(5) of the Customs Act 1962 by changing the declared country of origin and consequent classification - imported dry dates declared as originating from the United Arab Emirates (UAE) were in fact of Pakistan origin based on packaging and other circumstantial evidence or not - HELD THAT - In case of any type of assessment besides classification and assessable value of imported goods the country of origin is also required to be determined in accordance with the provisions of Section 14 of the Customs Act 1962 and the Customs Tariff Act 1975. In the present case it is found that the appellants had self-assessed the goods in terms of Section 17(1) ibid by declaring the value of the imported goods as per invoice price. It is also on record that on the investigation conducted by SIIB JNCH Customs officers in verification of such self-assessment in terms of Section 17(2) and 17(3) ibid the appellants had submitted to the department all the relevant documents for the supply of imported goods from the supplier s end at United Arab Emirates such as those specifically issued for proving the country of origin i.e. Certificate of Origin No. 21180158 dated 13.12.2021 issued by the competent authority Dubai Chamber of Commerce Industry. These facts bring out clearly that the appellants did not confirm his acceptance for change in country of origin proposed by the proper officer of Customs for re-assessment of goods under Section 17(4) ibid. Thus the proper officer of customs was required for passing of a speaking order on the re-assessment of imported goods under Section 17(5) ibid. It is a fact that the packing material or the label of the packing material that too found in part of the consignment cannot be a reasonable basis to decide the country of origin for the online imported goods; and the packing of the imported goods is not the foolproof criteria to decide the origin of imported goods. Further it is factually incorrect to treat the imported goods is also originating from that country of origin of packing material. The press reports published in public domain without any specific reference to the present imports cannot be taken to be a basis when various documents such as Bill of Lading indicating the port of shipment as Jabel Ali United Arab Emirates; commercial invoice packing list were produced by the appellants importer showing the evidence of country of origin of imported dry dates as United Arab Emirates. Further the Certificate of Origin issued by the Dubai Chamber of Commerce Industry clearly provide that the imported goods are of United Arab Emirates origin and not of Pakistan Origin. The evidential documents placed on record which have been issued specifically declaring that the imported goods are of United Arab Emirates origin forms sufficient reason to conclude that the imported goods are of United Arab Emirates . Thus there are no merits in the impugned order for upholding the order of original authority confirming that the imported goods are of Pakistan origin without any proper support of documents for confirmation of adjudged demands and for imposition of redemption fine and penalties on the appellants importer. Further it is not the case of Revenue that the imported goods did not comply with the Food Safety and Standards (Packaging and labelling) Regulations 2011 and therefore the action for confiscation and penalties were proposed. The Co-ordinate Bench of the Tribunal in the case of Doves International Vs. Commissioner of Customs New Delhi 2018 (5) TMI 1372 - CESTAT NEW DELHI have held that merely because of use of gunny bags showing that these bags are products on one country cannot by itself enable that the imported goods also should be treated as though of the same country of origin to which the packaging materials belongs to. In the case of Sukumar Mondal Vs. Collector of Customs (Preventive) 1989 (11) TMI 178 - CEGAT CALCUTTA the Co-ordinate Bench of the Tribunal had also held the country of origin of the imported goods cannot be decided on the basis of marks found in some of the imported goods. Conclusion - Since there are no evidences to prove that the imported goods are of Pakistan origin and on the other hand there is substantial proof to show that the goods are of United Arab Emirates origin it is considered appropriate to set-aside the impugned order. The impugned order is set aside - appeal allowed.

Summary

The core legal questions considered in this judgment revolve around the correctness and legality of re-assessment of imported goods under the Customs Act, 1962, specifically:

(i) Whether the imported 'dry dates' declared as originating from the United Arab Emirates (UAE) were in fact of Pakistan origin, based on packaging and other circumstantial evidence;

(ii) Whether the Customs authorities were justified in invoking Section 17(5) of the Customs Act, 1962 to re-assess the country of origin and consequently alter the classification and duty liability of the imported goods;

(iii) The validity of confiscation, imposition of redemption fine, and penalties on the appellants based on the alleged misdeclaration of origin;

(iv) The evidentiary value of packaging material and labels in determining the country of origin of imported goods;

(v) The applicability and sufficiency of documentary evidence such as Certificate of Origin, Bill of Lading, commercial invoice, and quarantine certificates in establishing the country of origin;

(vi) The legal principles governing self-assessment, verification, and re-assessment under the Customs Act, 1962, and the procedural safeguards therein.

Issue-wise Detailed Analysis:

1. Legality of Re-assessment under Section 17(5) of the Customs Act, 1962

Legal Framework and Precedents: Section 17 of the Customs Act mandates self-assessment by importers, with verification and re-assessment powers vested in proper officers. Sub-section (5) requires a speaking order within fifteen days if re-assessment contradicts the importer's self-assessment and the importer does not accept it in writing. The Act also defines "assessment" to include origin determination, which affects duty liability.

Court's Interpretation and Reasoning: The Court examined whether the re-assessment was validly invoked. The appellants had self-assessed origin as UAE and submitted relevant documents including a Certificate of Origin issued by Dubai Chamber of Commerce. The Customs officers, however, challenged this based on physical examination and intelligence inputs. The Court noted that the proper officer issued a speaking order as mandated, but the sufficiency of evidence to justify re-assessment was critical.

Application to Facts: The Court found that while procedural requirements were met, the substantive basis for re-assessment - i.e., changing the country of origin from UAE to Pakistan - was not sufficiently supported by evidence. The appellants did not accept the re-assessment, triggering the requirement of a speaking order, which was passed but found flawed on evidentiary grounds.

2. Determination of Country of Origin Based on Packaging Material and Labels

Legal Framework and Precedents: The Customs Tariff Act and rules require origin determination to be based on substantive evidence. Precedents cited include decisions where mere markings on packaging were held insufficient to determine origin of goods. The Court referred to Tribunal decisions emphasizing that packaging materials, especially reused or partially marked bags, cannot conclusively establish origin.

Key Evidence and Findings: Physical examination revealed some gunny bags bore tags indicating Pakistani manufacturers (Sargodha Jute Mills Limited and Thal Limited), but only in a small fraction of the total 1120 bags. Many tags were mutilated or missing. The rest of the bags had no such markings. The appellants contended that the jute bags were procured separately and did not reflect the origin of the dates inside.

Court's Reasoning: The Court held that reliance solely on packaging labels from a minority of bags to infer origin of entire consignment was unreasonable. It emphasized that packaging origin does not equate to product origin, especially when other documentary evidence supported UAE origin. The Court also noted that the labels could be manipulated or reused, and that the presence of Pakistani jute bags did not conclusively prove the dates themselves originated from Pakistan.

Competing Arguments: Revenue relied on the packaging labels and circumstantial data about trade patterns post-withdrawal of MFN status to Pakistan, suggesting diversion through UAE. The appellants relied on documentary evidence and quarantine certification supporting UAE origin.

Conclusion: The Court found the packaging evidence insufficient and held that origin determination cannot rest on such partial and indirect evidence.

3. Documentary Evidence Establishing Country of Origin

Legal Framework: Certificates of Origin issued by competent authorities, Bills of Lading, commercial invoices, and quarantine certificates are recognized evidence to establish origin. The Plant Quarantine certificate is particularly relevant for agricultural imports.

Findings: The appellants produced a Certificate of Origin from Dubai Chamber of Commerce, Bill of Lading showing shipment from Jebel Ali, UAE, commercial invoice, and packing list indicating UAE origin. The Regional Plant Quarantine Station had examined the consignment and certified origin as UAE, recommending release for consumption.

Court's Reasoning: The Court gave significant weight to these official documents, holding that they constitute sufficient proof of UAE origin. It also noted that the Revenue did not dispute compliance with packaging and labeling regulations under Food Safety laws, nor did it produce contrary laboratory or forensic evidence.

Application to Facts: These documents contradicted the Revenue's presumption of Pakistan origin and were not adequately rebutted. The Court emphasized the primacy of such documentary evidence over circumstantial packaging evidence.

4. Classification and Duty Liability Consequent to Origin Determination

Legal Framework: Customs Tariff classification and duty rates are linked to origin. Post withdrawal of MFN status to Pakistan, duty on imports from Pakistan was raised to 200%, compared to 20% from UAE.

Findings: The Revenue sought to reclassify the goods under a residual tariff heading attracting 200% duty, alleging misdeclaration to evade higher customs duty. The appellants declared under a tariff item attracting 20% duty.

Court's Reasoning: Since origin determination was found flawed, the reclassification and demand for differential duty were unsustainable. The Court held that without establishing Pakistan origin, the higher duty could not be imposed.

5. Confiscation, Redemption Fine, and Penalties

Legal Framework: Sections 111(m), 112(a), 114A, and 114AA of the Customs Act provide for confiscation and penalties for misdeclaration and evasion of duty.

Findings: The original authority confiscated the goods and imposed penalties based on the finding of Pakistan origin and misdeclaration.

Court's Reasoning: Given the Court's finding that origin was not proved to be Pakistan, the basis for confiscation and penalties failed. The Court also noted that there was no allegation or evidence of non-compliance with packaging or labeling regulations under Food Safety laws, which could justify confiscation.

Conclusion: Confiscation and penalties were set aside as unsustainable.

6. Treatment of Trade Pattern and Press Reports as Evidence

Findings: The Revenue relied on press reports and trade data showing a decline in direct imports from Pakistan and increase in imports from UAE and other countries post-withdrawal of MFN status, suggesting diversion of Pakistani goods through UAE.

Court's Reasoning: The Court held that such generalized reports and data cannot substitute for specific evidence on the consignment in question. The reports were not tied specifically to the appellants' imports and could not override documentary evidence.

Significant Holdings:

"The packing material or the label of the packing material, that too found in part of the consignment, cannot be a reasonable basis to decide the country of origin for the imported goods; and the packing of the imported goods is not the foolproof criteria to decide the origin of imported goods."

"The imported goods upon arrival in India, have also been subjected to Plant quarantine procedure ... and the Regional Plant Quarantine Station ... had examined the imported dry dates and have also certified that the country of origin as 'United Arab Emirates' ... forms sufficient reason to conclude that the imported goods are of 'United Arab Emirates' origin."

"Merely because of use of gunny bags showing that these bags are products of one country, cannot by itself enable that the imported goods also should be treated as though of the same country of origin to which the packaging materials belong."

"Where the only basis on which the goods were confiscated was the marks of foreign origin found in some of the goods, it would not be in order to confiscate all the goods as if all of them were of foreign origin."

"The impugned order passed by the learned Commissioner of Customs (Appeals) cannot be sustained."

The Court concluded that the re-assessment under Section 17(5) was not justified on the evidence, the country of origin was correctly declared as UAE, and consequently the classification, demand for differential duty, confiscation, redemption fine, and penalties imposed on the appellants were set aside. The appeals were allowed in favor of the appellants.