TMI Blog2022 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived are handed over to the Custodian (say, Port Trust or CFS, ICD, etc.) which, in turn, hands over the goods to the importer on production of the Bill of Lading, clearance from the Customs (in the form of Bill of Entry) and a delivery order issued by the Shipping Line (confirming clearance of its dues). The Bill of Lading cannot mention Afghanistan as the Port of Loading because that is not where the goods were received by the Shipping Line. We do not find anything in the exemption notification requiring that the same transporter has to transport the goods from the place of export upto the final destination. Therefore, denial of the benefit of the exemption on this basis is not correct. The Principal Commissioner also doubted the documents which were submitted for the reason that the Invoice, Country of Origin Certificate and Transit Certificate were all issued on the same date 16.02.2022 and since these were to be issued by different authorities requiring inspections, he held that it would have been impossible to do so. We find that since the invoice was issued by the exporter itself and not by any authority it would not take much time to issue it. The Country of Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2022 at Inland Container Depot [ ICD ] , Tughlakabad to clear the goods claiming the benefit of Notification No. 99/2011-Cus which exempted the goods originating in Afghanistan from the whole of duty of Customs. The goods were detained, documents were called for, and statements were recorded by the officers of the Commissioner of Customs (Preventive) and a Show Cause Notice was issued to the appellant which culminated in the impugned order. 3. The undisputed legal position is that goods imported from Afghanistan are exempted from the whole of duty by Notification No.99/2011-Customs dated 9.11.2011 and that all goods originating in or exported from Pakistan are classifiable under Customs Tariff Heading 98060000 and are chargeable to customs duty @ 200% in view of the Notification No.5/2019 dated 16.02.2019 issued under Section 8A of the Customs Tariff Act, 1975. It must be noted that the Notification No. 99/2011 dated 9.11.2011 exempting the goods imported from Afghanistan fully from duty is issued under section 25(1) of the Customs Act, 1962 which empowers the Central Government to grant exemptions. Notification No.5/2018-Customs dated 16 th February 2019 covering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) (3) 1 2203 to 2206 All goods 2 2207 10 All goods 3 2208 All goods 4 Chapter 24 All goods APPENDIX S. No. Country (1) (2) 1. People‟s Republic of Bangladesh 2. Kingdom of Bhutan 3. Republic of Maldives 4. Nepal 5. Islamic Republic of Afghanistan Section 8A of the Customs Tariff Act, 1975 SECTION 8A. Emergency power of Central Government to increase import duties. - (1) Where in respect of any article included in the First Schedule, the Central Government is satisfied that the import duty leviable thereon under section 12 of the Customs Act, 1962 (52 of 1962) shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te headings regardless of the nature of the goods. Notification dated 16.02.2019 issued under Section 8A of the Customs Tariff Act, 1975 classified all goods exported from or originating in Pakistan under a separate Customs Tariff heading 98060000 and it has also increased the Tariff rate of duty to 200%. The charging section for Customs duty is Section 12 of the Customs Act which levies duties at the rates specified in the schedules to the Customs Tariff Act, 1975. If the goods either originate in or are exported from Pakistan, they will be classifiable under a separate tariff heading 98060000 and will be chargeable to tariff rate of 200% duty and if not, they will be classified as per the tariff and will be charged to applicable duties read with any exemptions. 5. The question which we have to answer in this appeal is as follows: Given the factual matrix of this case, were the imported goods of Afghanistan origin imported from Afghanistan to India transiting through Pakistan as asserted by the appellant and hence chargeable to NIL rate of duty OR were they exported from Pakistan and hence chargeable to 200% duty as decided in the impugned order? 6. According to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere carried in Container No.INKU6707857 and sealed with Seal No. 00596 and sailed to Nhava Sheva in vessel MOL Growth 217. The Bill of Lading mentions the Port of Loading as Karachi for the reason that the goods were stuffed in a container and loaded in that port. The shipping line had not received goods before Karachi as they were transported in a custom sealed bonded truck from the border to Karachi port by a different transporter. The Bill of Lading mentions Nhava Sheva as the Port of Discharge and ICD Tughlakabad as place of delivery. (h) Thus, the transportation from Herat upto the Chaman border was done by a different organisation and transport from Chaman border to Karachi was under Custom bonded truck by Bolan Logistics and transport from Karachi Port to Nhava Sheva by sea was by Blue World Shipping Agencies and as per the standard practice, all containers from Nhava Sheva destined to ICD Tughlakabad are transported by Rail by the public sector undertaking Container Corporation of India (CONCOR). (i) Since the goods were of Afghanistan origin the appellant is entitled to full exemption from the duty under the exemption notification. (j) The goods only transited thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cious because these require different testing and examination of goods by different agencies. (b) The appellant claimed the benefit of the exemption notification and hence the burden is on it to prove that it is entitled to the benefit which it has not discharged. Reliance was placed on Commissioner of Customs (Import) vs Dilip Kumar and Co. [ 2018(316) ELT 577 (SC) ]. (c) Transit Certificate submitted by the appellant was not signed by the Pakistan Customs authorities. (d) The Bill of Lading does not mention Herat, Afghanistan but mentions Karachi, Pakistan as the Port of Loading. (e) The denial of the benefit of the exemption notification and demand of duty, confiscation of the goods, and imposition of penalty are therefore, correct and proper and call for no interference. 9. We have considered the submissions on both sides and perused the records. 10. In the impugned order, the Principal Commissioner has not accepted the contention of the appellant that the goods were of Afghanistan origin and have been exported from Afghanistan for the reason that the Bill of Lading issued by the Shipping Line clearly indicated that the Port of Loading was Karachi and NOT Hera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take much time to issue it. The Country of Origin Certificate was issued by the Afghanistan Chamber of Commerce and Industries cross referencing the invoice and also endorsing the invoice on the same day. The Transit Certificate was issued by the Ministry of Industry and Commerce on the same day. We find no good reason as to why one department of the Government and the Chamber of Commerce and Industries and the exporter itself cannot issue documents on the same date. There is no basis for formation of such a suspicion by the Principal Commissioner on this ground. The benefit of the exemption notification could not have been denied on this basis. 12. The Principal Commissioner further observed that the Transport Note and the Trip Duration Report (which cover the movement of goods in the truck from Afghanistan Pakistan border at Chaman to the Port of Karachi) had no signatures of the Customs officer of the Port of Destination. 13. Learned counsel submitted that the Port of Destination is Nhava Sheva or ICD Tughlakabad and hence they could not have been signed by the officer at Karachi. 14. We disagree. These documents cover only the movement of the goods in a bonded truck fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 022 were examined and permitted to be shipped in Container No. INKU6707857. It is signed by the Superintendent of Pakistan Customs and Principal Appraiser of Pakistan Customs (presumably at Karachi Port) and it also bears the signature of the Customs Officer at Chaman (Afghanistan- Pakistan border). This document provides sufficient evidence to establish that the goods which were transported from Afghanistan on 16.02.2022 through the border at Chaman on 21.02.2022 in a Customs bonded truck were examined at Karachi port by the Customs Officers on 25.02.2022. The Container Number and other details in this document match with the Bill of Lading issued by the Shipping Line on the basis of which the Bill of Entry was filed by the appellant importer. This document also mentions the Truck No. and seal under which the goods had moved under Customs bond from Chaman (Afghanistan- Pakistan border) to Karachi Port. In our considered view, the chain of documents is complete to establish that the origin of the goods was Afghanistan and that they were exported from Afghanistan, transited through Pakistan, stuffed in a container in Karachi Port and transhipped in a vessel to India. 18. Two othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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