TMI Blog2017 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No.189/2009-Cus(NT) dt. 31/12/2009 for import of gold jewellery of 5.0244 kgs. or otherwise? Held that: - the adjudicating authority, as rightly held by the first appellate authority, cannot go beyond the provisions of notifications and come to a conclusion based upon an assumption and presumption that the gold mined by the exporting country could not have been used by the supplier / manufacturer for producing the imported gold jewellery. The first appellate authority was correct in recording that notification provides for detailed verification process in case of reasonable doubt. It is on record, as stated by the Departmental representative that verification report received from the Indonesian authorities were inconsistent with each other, but there is no denial as to the fact that the said verification report clearly indicates that all the documents with imported consignments were genuine. In the absence of any suspicion on documents, the adjudicating authority could not have gone beyond the provisions of notifications. This kind of preferential trade agreement between the member state of ASEAN and the Republic of India is a reciprocal arrangement between the countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse to retroactive check sought by the Department in respect of 4 randomly selected certificate of origin out of large number of certificates issued under FTA in terms of Rule 16(a) of the said Rules, forwarded a letter from the supplier (M/s. PT Antam)wherein it was informed that the supplier do not maintain any inventory to indicate the origin of gold ore or gold dore bars which were re-smelted for the purpose of producing refined gold (raw material / input for the manufacture of gold jewellery) and their refinery annually produces 200 tonnes of refined gold; whereas the mining capacity of the Indonesia as per the information in the public domain is not more than 65 tonnes. It is also his submission that as per the information from the Indian Embassy in Jakarta Indonesia, 37 tonnes (approximately 57%) of the gold mined in Indonesia is exported in the form of gold powder, lumps and cast bars which raises a doubt as to origin of gold used for manufacturing of imported jewellery from Indonesia has been made from mixing gold dore bars of foreign origin along with domestic origin more so by the letter of supplier who stated they are not maintaining any inventory. It is his submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the outcome of the investigation. 4. Learned counsel appearing on behalf of the respondent draws our attention to the Notification No-189/2009 and No.46/2011-Cus and submits that in the entire notification there is nothing which indicates that the lower authority has to assume things and deny the benefit. He would submit that the respondent/importer has complied the conditions of both the notifications in toto and there is no doubt as to the certificate of origin issued by the Indonesian authorities- He would submit that the imported goods were put to 100% check and the examination report clearly indicates that the goods which were imported were complying with the description, quantity, value as mentioned in the documents end the purity of the goldis also as declared as has been tested by the approved jewellery valuer as pointed out by the customs authority. It is also on record that the jewellery which is imported by the respondent is unbranded and the specimen signatures that is circulated by the Commissionerate for ascertaining the authenticity of certificate of origin was also verified and it was found tallied. He would submit that an importer cannot go beyond this much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the mechanism provided in Notification No. 189/2009-Cus(NT), dated 31.12.2009, and the lower adjudicating authority has no authority to travel beyond the said provisions. The said notification provides for detailed verification process in case of any reasonable doubt as to authenticity or accuracy of information in certificate of origin, which include retroactive check within prescribed time limit, verifications visit to the exporting party. The department has not placed on record any evidence to refute the documents submitted by appellant. The lower adjudicating authority raises another contention that as per Rule 12 of Customs Tariff Rules, 2009, the supplier has not maintained accounts A reading of said rule would reveal that it is meant for a product which is manufactured out of both originating and non-originating materials, and not applicable to a product which is wholly produced or obtained products, as in the present case. The cases relied upon by lower adjudicating authority are not relevant to the facts and circumstances of the present case, as there is no ambiguity in law in respect of present imports, and moreover, the subject imports, are properly backed by certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as wholly obtained or produced if the same are extracted or taken from the exporting countries soil, water, seabed or beneath the seabed and sub-rule (i) of Rule 4 provides that products obtained or produced for the party solely inter alia sub-rule (e) are also considered as wholly obtained or produced. The factual position as to that PT Antam is a mining company, having two mines having not been disputed and specific claim of the appellant the imported goods were manufactured out of the gold refined from the gold ore procured from their gold mines not controverted has more credentials the benefit of the Notification No.46/2011-Cus. needs to be extended to importer/respondent. In yet another angle, we have to see what is the requirement of the AIFTA. The requirements of the AIFTA is that the item should be of origin wherein preferential treatment treaty has been signed with and the value addition is done at the place the goods are exported. In the case in hand, it is accepted fact that the jewellery was produced in Indonesia and out of the gold refined from the ore of the supplier M/s. PT. Antam. In our considered view, the adjudicating authority, as rightly held by the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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