TMI Blog2021 (6) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... and that too, for reasons to be recorded. This is a flaw that goes to the root of the matter, the procedure adopted in the impugned proceedings. The timeline for response by the Verification Authority is set out in regulation 63b, which is sixty days from date of request. In the present case, this request has not been initiated and the Department has been sitting pretty on the consignment despite requests for release, the petitioner repeatedly drawing attention to the fact that the consignment comprises perishable goods - The certificate of origin in this case as well as the clarification obtained by the petitioner have been obtained from the Assistant Director acting for the Director General of Commerce in the Department of Commerce, Colombo. The designated Authority under the IFSTA is the Director General of Commerce, Department of Commerce, also the authority which has issued the COO and subsequent clarification. The objection of the respondents in regard to the COO as well as their contention that the clarification dated 19.03.2021 ought to have been received through proper channel is thus, hypertechnical, to say the least. The petitioner has satisfied the requirement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Lanka, to the effect that the certificate had been issued on 17 .02.2021 only. The clarification also confirmed that the COO had been signed by one Ms.Vireshika, Assistant Director of Commerce, who was an authorized officer of the Department of Commerce, Colombo. The above clarification was itself signed by one Mr.Somasena Mahadiulwewa, the Director of Commerce. 5. This having been cleared, the second objection raised by R2 was in regard to a stamp affixed on the COO which read 'issued retrospectively'. According to the counter filed and the oral submission made by the learned Junior Standing Counsel, the trade agreement between India and Sri Lanka does not provide for the issuance of a COO retrospectively. 6. According to the respondent, there are trade agreements that specifically permit the issuance of a COO retrospectively/retroactively in cases where the COO was not issued at the time of exportation or proximate thereto, but on a later date. He cites the (i) Customs Tariff (Determination of Origin of Products under the Duty Free Tariff Preference Scheme for Least Developed Countries) Rules 2015 (Notification No.29 of 2015-Section 15(8) (ii) South Asian Free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke recourse to the procedure for reference under the CATODAR only if the importer furnishes 100% of the differential duty as a security. 11.In order to test the correctness or otherwise of the rival submissions advanced I must advert to the provisions of Section 28-DA of the Act. Section 28-DA is contained is Chapter V-A, inserted by Act 12 of 2020, and sets out the administration of rules of origin under trade agreements. Section 28-DA, to the extent to which it is relevant to this matter, is extracted below: Chapter V-AA Administration of Rules of Origin under Trade Agreement 28-DA. Procedure regarding claim of preferential rate of duty. - (1) An importer making claim for preferential rate of duty, in terms of any trade agreement, shall (i) make a declaration that goods qualify as originating goods for preferential rate of duty under such agreement; (ii) possess sufficient information as regards the manner in which country of origin criteria, including the regional value content and product specific criteria, specified in the rules of origin in the trade agreement, are satisfied; (iii) furnish such information in such manner as may be provided by rules; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority to call for information consistent with the trade agreement in support of the claims by the importer. 13. Sub-Section (4) states that where the importer fails to provide the requisite information, the proper officer may cause verification consistent with the relevant trade agreement and the applicable rules in that regard and may, pending verification temporarily suspend the preferential tariff treatment claimed by the importer. The proviso to sub-Section (4) states that the Principal Commissioner or Commissioner may, where they are of the view that the information furnished by the importer is erroneous, or on the basis of information available with them, for reasons to be recorded, disallow the claim for preferential claim of duty without further verification. 14. In the present case, the claim for preferential duty has been rejected unilaterally and without assigning any reasons whatsoever by the Deputy Commissioner of Customs, an authority not competent to have rejected the claim as per the proviso to Section 28-DA(4). Though the consignment has been imported in February 2021, there has been no initiation of enquiry by the proper officer under sub-Section (3) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate of origin from Verification Authority where: (a) there is a doubt regarding genuineness or authenticity of the certificate of origin for reasons such as mismatch of signatures or seal when compared with specimens of seals and signatures received from the exporting country in terms of the trade agreement; (b) there is reason to believe that the country of origin criterion stated in the certificate of origin has not been met or the claim of preferential rate of duty made by importer is invalid; or (c) verification is being undertaken on random basis, as a measure of due diligence to verify whether the goods meet the origin criteria as claimed: Provided that a verification request in terms of clause (b) may be made only where the importer fails to provide the requisite information sought under rule 5 by the prescribed due date or the information provided by importer is found to be insufficient. Such a request shall seek specific information from the Verification Authority as may be necessary to determine the origin of goods. (2) Where information received in terms of sub-rule (1) is incomplete or nonspecific, request for additional information or verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove that goods do not meet the origin criteria prescribed in the respective Rules of Origin. 19. The timeline for response by the Verification Authority is set out in regulation 63b, which is sixty days from date of request. In the present case, this request has not been initiated and the Department has been sitting pretty on the consignment despite requests for release, the petitioner repeatedly drawing attention to the fact that the consignment comprises perishable goods. 20. That apart and very relevantly, Verification Authority is defined under Regulation 2(g) to mean the authority in the export country designated to respond to a verification request under a trade agreement. The certificate of origin in this case as well as the clarification obtained by the petitioner have been obtained from the Assistant Director acting for the Director General of Commerce in the Department of Commerce, Colombo. The designated Authority under the IFSTA is the Director General of Commerce, Department of Commerce, also the authority which has issued the COO and subsequent clarification. The objection of the respondents in regard to the COO as well as their contention that the clarifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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