TMI Blog2021 (2) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the respondent No.3] and the communication dated 24.11.2020 [Annexure-D to the reply filed by the respondent No.3] or the communication dated 20.11.2020 [Annexure-E to the reply filed by the respondent No.3], it appears to this court that verification is on mis-declaration‟. The petitioner was not afforded any opportunity to meet the purported deficiency for which the clearance has been refused. No observation on the legality or regularity of the process of verification on merit is called for at this stage, considering that the verification is still inconclusive. But in the emerged circumstances, the assessing officer and the other respondent-authorities are directed to provisionally assess the duty and to release the goods on obtaining an indemnity bond, to be submitted by the petitioner binding himself to deposit the duty or the difference between the duty that would be assessed by the competent authority on verification and the preferential duty within a period of 7(seven) days. In the event of failure to deposit the assessed duty on completion of verification within the said stipulated time, the payable duty shall carry interest at the rate of 15% per annum from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The respondents have admittedly initiated a verification regarding the Certificate of Origin produced by the petitioner for availing the concessional rate of customs duty. Though the respondents are at liberty to initiate verification, but they cannot hold up the assessment/clearance for an indefinite period without passing an order following the principles of natural justice. 3. The petitioner has seriously alleged that he has been left remediless as the respondents have not passed any order. According to him, clearance of goods should have been allowed following the provisions under Sections 17 and 18 of the Customs Act either accepting the concessional rate of duty as claimed by the petitioner under self-assessment or rejecting it or by doing reassessment under Section 17 of the said Act. Reassessment could not have been denied for indefinite period for such freely importable goods particularly when the goods are of perishable nature. In these circumstances, the petitioner has urged this court for directing the respondent authorities to assess/clear the soybean oil imported under the Bill of Entry dated 26.09.2020 within a period as would be set up by this court. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssess and clear the goods, subject to importer furnishing a security amount. [Emphasis added] 5. The petitioner has asserted that he has met all criteria of the CAROTAR, 2020 and possessed all information regarding the country of Origin of Goods as per Rule 4 of the new rule and have furnished requisite information under Rule 4 of the CAROTAR, 2020. He has averred that the imported soybean oil is not wholly originated in Bangladesh and for that reason, he has submitted that cost breakup for imported soybean oil showing the value addition in Bangladesh by producing the declaration dated 14.09.2020 issued by the Head of Supply Chain Shun Shing Edible Oil Limited [Annexure-5 to the writ petition] in Bangladesh. The break up as referred is as under : Imported component in Bangladesh : 62.75% Value addition in Bangladesh : 37.25% 6. Even though, the petitioner has produced all relevant documents for import of soybean oil, the custom authorities have not given the clearance of the imported goods and held up the clearance since 26.09.2020. The petitioner has thus been compelled to bear the wire house rent and run the risk of gradually having the goods damaged fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has submitted all the relevant documents/information. Moreover he possess all the relevant information. Hence, the petitioner is not required to furnish the bank guarantee [BG] for the whole of the custom duty which is eligible for exemption. 8. On 16.11.2020, the petitioner submitted a written memorandum to the Commissioner of Customs, Shillong apprising him unlawful holding up of clearance [assessment]. In the letter dated 24.11.2020 [Annexure-9 to the writ petition], the Assistant Commissioner of Agartala LCS was directed by the Additional Commissioner of Customs, Shillong to take necessary action as per law but no such action has been taken. CBIC in their circular No.53/2020- Customs dated 08.12.2020 has provided that in some other notified preferential Rules of Origin where specific provision for third party invoices is provided, the origin of goods is none the less based on the value addition done in the country of origin alone with FOB in country of origin being the base for arriving at the local value content. The petitioner had submitted the documents beforehand and intimated the same to the respondent authorities by the letter dated 2020 and urged them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided under Section 18 of the Customs Act, 1956 read with Rule 5 and 6(4)(c) of CAROTAR, 2020. According to the said respondent, the disputed facts cannot be examined under Article 226 of the Constitution. 13. In the reply, the respondent No.3 has further stated that the goods were warehoused so that the proper officer can check the goods, since the goods in the present case is refined soybean oil need to be tested or to be having such test report which proves the goods fit for human consumption . As such, the sample was taken by the proper officer vide the sample No.897 dated 26.09.2020 and were sent to Food Testing Lab, Bodhjungnagar. Thereafter, the respondent No.3 has averred as follows : On scrutiny of the documents provided by the Importer under Rule 5(1) of CAROTAR 2020 in Form-1 some doubts were raised by the Proper Officer, i.e. Assistant Commissioner, Agartala Land Customs Station and the same was communicated to M/s Jagannath Trading (IEC 204022410) vide letter dated 12.10.2020. The above said importer was requested on 30.10.2020 and 08.12.2020 because goods are perishable in nature self life is there to get Customs clearance of the imported goods by provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted goods by provisional assessment under section 18 of Customs Act 1962 to prevent any kind of financial losses/constraints. Further, for verification of Certificate of Origin the nodal officer (i.e. Commissioner of Customs(P), NER, Shillong) was requested to verify the CoO (SAFTA) in terms of Rule 6 of CAROTAR 2020, vide letter dated 30.10.2020. Moreover, the issue has already been escalated by the Headquarter Customs (P), NER, Shillong to The Director (International Customs Division), CBIC, New Delhi, of which no verification status is received by this office till date. 15. As stated, the respondent No.3 had issued two letters dated 30.10.2020 and 08.12.2020 apprising the petitioner to assess the Bill of Entry dated 26.09.2020 provisionally under provisions of Rule 6(4)(c) of the CAROTAR 2020 to avoid hardship by avoiding demurrage charges and other financial losses. By the letter dated 08.12.2020, the respondent No.3 had apprised the petitioner that the declaration submitted by the petitioner in respect of the Bill of Entry of dated 26.09.2020 had been sent for verification by the competent authority under Rule 6(1) of CAROTAR, 2020. The reply from the competent author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st break up against bill of entry no.659600/IMP/AGT-LCS/2020 dated 26.09.2020 for clearing the soybean oil packing in Tin wherein they shown the percentage of profit is 14.56% (Copy enclosed). It appears that their profit directly affect the DVA. The both consignment are same different only costing of packing materials and percentage of profit. In view of the above, if approved, (a) the Certificate of origin (SAFTA) may be verified in terms Rule 6 of CAROTAR, 2020 or order as deem fit. 16. The respondent No.3 has also referred the content of an interoffice communication dated 24.11.2020 addressed to the Assistant Commissioner, Land Customs Station, Agartala by the Additional Commissioner of Customs [Preventive] North Eastern Region [Annexure-D to the reply]. On erroneous interpretation of Section 28(D)(1) of the Customs Act, 1962 read with Rule 4, 5 and 6 of the CAROTAR, 2020, according to the petitioner, the action holding up the clearance/assessment of soybean oil imported under SAFTA exemption was adopted in a case where no security is required, for such random verification initiated without knowledge of the importer as per Para-3 serial No.5(b) CBIC‟s circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of clearance, there were reasons to believe that the Rules of Origin have not been met and accordingly, further information and supporting documents were sought under Rule 5(1) of CAROTAR 2020 : Sl. Name of Importer Bill of Entry No. No. 1. M/s Delwara Steel Industries Pvt. Ltd. 659629 dt. 29.09.2020 2. M/s Swarupananda Trading Co. 659604 dt. 28.09.2020 3. M/s Swarupananda Trading Co. 659617 dt. 28.09.2020 4. M/s Rajesh Auto Merchandise Pvt. Ltd. 659607 dt. 27.09.2020 5. M/s Tarakeswar Enterprise 659603 dt. 25.09.2020 6. M/s Tarakeswar Enterprise 659602 dt. 25.09.2020 7. M/s Jagannath Trading 659600 dt. 26.09.2020 The importers have submitted supporting documents and on scrutiny of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be verified. 20. Mr. Dasgupta, learned counsel has drawn attention of this court to the representation filed by the petitioner on 16.11.2020 where it had been asserted that the new provision as introduced by Section 28(D)(A)(1) of the Customs Act, 1962 has shifted onus on importer to possess origin related information [see Rule 4 of the CAROTAR] which the custom authority can requisition, if the origin criteria is found not met in the course of verification as prescribed. That can be made under Rule 5 of the CAROTAR. No assessment under Section 17 or provisional assessment under Section 18 of the Customs Act has been done and consequently the soybean oil imported from Bangladesh under SAFTA are warehoused without assessment by the assessing authority causing demurrage and financial loss to the petitioner. It has been submitted by Mr. Dasgupta, learned counsel that for import of soybeans oil the minimum value addition of 30% has been certified by the Export Promotion Beauro of Bangladesh for qualifying the SAFTA exemption in respect of the product which was not wholly originated in Bangladesh. 21. What has been emphatically submitted by Mr. Dasgupta learned counsel and is note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate shall not suspend the customs clearance of the consignment subject to a guarantee in any of its modalities in order to preserve fiscal interests, as a pre- condition for completion of customs clearance. (d) The Issuing Authority receiving a request for retrospective check shall respond within three (3) months after the receipt of the request. Mr. Dasgupta, learned counsel has therefore emphatically submitted that the verification is entirely covered by the provisions of Article 15(a) of the said Rules or protocol. The reasonable doubt can only be raised in respect of authenticity of the document or the accuracy of the information regarding the true origin of the products in question or of certain parts thereof. For purpose of the latter part, on reasonable doubt or for inaccuracy of the information etc., the proper officer should ask for the additional information or document from the importer. In the case in hand, no such requisition has been made. Later on, the doubt has been expressed on the value addition vide the letter dated 30.10.2020 but the same was never disclosed to the petitioner to afford him place the additional information as provided under Rule 6(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not challenged the process of the verification, but the petitioner has made serious allegation that without affording any opportunity to the petitioner in respect of meeting any deficiency, the petitioner had been asked to opt or request for provisional assessment for purpose of clearing the goods on furnishing the security [100% bank guarantee] for the difference between the duty provisionally assessed under Section 18 of the Act and the preferential duty claimed. It is apparent that when the verification was initiated, no record was available with the respondents nor any communication was made to the petitioner that the verification was being under Rule 6(1)(a) or Rule 6(1)(b) or Rule 6 (4)(c) of the CAROTAR 2020 and hence, there was no reference to the security (BG). However, from the records as produced [which are the posterior records] such as the communication dated 30.10.2020 [Annexure-3 to the reply filed by the respondent No.3] and the communication dated 24.11.2020 [Annexure-D to the reply filed by the respondent No.3] or the communication dated 20.11.2020 [Annexure-E to the reply filed by the respondent No.3], it appears to this court that verification is on mis-dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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