TMI Blog2015 (1) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... re etc. There is no material available that the provisional assessment under Section 18 of the said Act was resorted for want of Country of Origin certificate. The commissioner (Appeals) had categorically observed that the Country of Origin certificate has been produced at the time of provisional assessment and therefore it was not mentioned as a required document in respect of finalization of the provisional assessment. These facts were not disputed by the Revenue in the grounds of appeals. On a query from the Bench as to how the refund has arisen in some cases, the learned counsel clarified that the refunds arose in cases of excess payment made on account of higher quantity and higher value, which has no relation to the dispute before us. - Decided against Revenue. - C/41988 to 41995/2013, C/41996 to 42025/2013, C/40317/2014, C/40318 to 40338/2014, C/40485 to 40487/2014 - Final Order No. 40904-40966 / 2014 - Dated:- 28-10-2014 - Shri P.K. Das and Shri R. Periasami, JJ. For the Appellant : Shri M. Rammohan Rao, DC (AR) For the Respondent : Shri Bipin Kumar Jain, Advocate and Shri G. Krishnamurthy, Advocate JUDGEMENT Per P.K. Das A common issue is invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough their CHA M/s. Villavarayar and son for the clearance of copper concentrate falling under CTH 26 03 0000 for the declared quantity of 11000.000 Wet Metric Ton. The said copper concentrate was supplied by M/s.J.P. Morgan Metals Concentrate LLC vide provisional invoice dated 1.7.2011 for provisional payment of USD 27764163.91 with ICICI bank reference no. 0544MFC00043412. The importer requested for provisional assessment for the subject goods under Section 18 of the Customs Act, 1962, as they were unable to produce final documents such as 1. WSMD (Weight Sampling Moisture Determination) report, 2. Suppliers lot wise assay report (Lab report), 3. Buyer s assay certificate, 4. Umpire s assay in case any major difference in content in any lot between supplier s assay and buyer s assay, 5. Final assay certificate, 6. Statement of facts given by the master of the vessel, 7. Final invoice and etc. As per the terms and conditions of the Contract No. 3129 dated 25.3.2011 entered into between the supplier M/s. J.P. Morgan Metals Concentrate LLC and the buyer M/s. Sterlite Industries (India) Ltd., Unit Deductions / Payable Contents, Treatment Refining Charges and Freight clauses ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment to produce the Certificate of Origin before the adjudicating authority. Hence, the adjudicating authority rightly denied the benefit of exemption Notifications. It is further contended that the Commissioner (Appeals) merely proceeded on the basis that the Certificate of Origin was placed at the time of warehousing for filing the into-bond Bills of Entry. According to the learned AR, the respondent should have placed the Certificate of Origin before the adjudicating authority, which were not complied with. 7. The learned counsel for the respondents submits that the Revenue had not disputed the observation of the Commissioner (Appeals) that the respondents placed the Certificate of Origin at the time of warehousing of the goods, which is an essential requirement for claiming the exemption as per notifications. He further submits that it is clearly apparent from the adjudication orders that the provisional assessment was obtained only for finalization of the value and quantity. The adjudicating authority had gone to the new issue which was beyond the provisional assessment. He also filed written submission. 8. We find that the respondent filed 60 Bills of Entry for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to as Rules 2007). This notification was issued in exercise of the powers conferred by sub-section (1) of Section 5 of the Customs Tariff Act, 1975. Rules 2007 provides the production of Certificate of Origin for importation of the goods. For the purpose of proper appreciation of the case, the relevant portions of Rules, 2007 are reproduced below:- Rule 15. Certification of Origin 1. The Certificate of Origin is the document that certifies that goods fulfil the origin requirements as set out in these Rules so that they can benefit from the preferential tariff treatment as foreseen in this Agreement. The said Certificate is valid for only one importing operation concerning one or more goods and its original or in exceptional cases a copy of the original of which has to be submitted within 30 days from the date of clearance of goods in the importing Party and shall be included in the documentation to be presented at the customs authorities of the importing Party. xxxxx xxxxx xxxx xxxx xxxxx SECTION IV Control and Verification of Certificates of Origin Rule 17. 1. Regardless of the presentation of an origin certificate in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with domestic laws of the Parties. xxxxx xxxxx xxxx xxxx xxxxx Rule 20 In the cases in which the information requested under Article 17 is not provided within the deadline established in Article 18 or is insufficient to clarify any doubt concerning the origin of the good, the competent authorities of the importing Contracting Party may initiate an investigation on the matter within sixty (60) days, from the date of the request for the information. xxxxx xxxxx xxxx xxxx xxxxx Rule 26 In the cases in which the information or documentation requested to the competent authorities of the exporting Party is not produced within the stipulated deadline, or if the answer does not contain enough information or documentation for determining origin, the authenticity or veracity of the origin certificate under investigation, or still, if the producers do not agree to the visit, the competent authorities of the importing Party may consider that the products under investigation do not fulfil the origin requirements, and may, as a result deny preferential tariff treatment to the products mentioned in the origin certificate under investigation according to Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of valuation and quantity as the Buyers assay certificate, Final assay certificate, statement of facts given by the master of the vessel, Final Invoice etc. were not available. There is no whisper in the adjudication order that either any proceeding was initiated as per the said Rules, 2007 in respect of verification of the Certificate of Origin or provisional assessment was resorted to for want of Certificate of Origin. 10. In this context, we find that the Commissioner (Appeals) had given detail findings in the impugned orders. For proper appreciation of the case, we reproduce the relevant portion of the Order-in-Appeal No. 120 127/2013 dated 18.6.2013, as under:- 4.1 Whereas the lower authority has stated in the findings that the certificate is no in conformity with Rule 15(1) of Notification No. 84/2007 (NT) dated 17.8.2007. The Rule 15(1) is read as follows The certificate of origin is the document that certifies that goods fulfill the origin requirements set out in these rules so that they can benefit from the preferential tariff treatment as foreseen in agreement. The said certificate is valid for only one importing oper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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