9911796707
TMI Blog2022 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under sections 114A and 114AA. 2. The undisputed facts of the case are that the appellant imported Colchicum (Saanjan) Grade 3" and filed Bill of Entry No.7821136 dated 11.03.2022 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06. Annexure S. No. HS Code Description (1) (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) should be increased and that circumstances exist which render it necessary to take immediate action, it may, by notification in the Official Gazette, direct an amendment of that Schedule to be made so as to provide for an increase in the import duty leviable on such article to such extent as it thinks necessary : Provided that the Central Government shall not issue any notification under this subsection for substituting the rate of import duty in respect of any article as specified by an earlier notification issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant, it imported the goods from Herat in Afghanistan to Inland Container Depot, Tughlakabad, Delhi. Since Afghanistan is a land-locked country, they were transported by road upto Chaman in Afghanistan-Pakistan border and then were again transported by another truck from Chaman to Karachi port from where they were stuffed in a container under Customs supervision and shipped to ICD, Tughlakabad via Nhava Sheva port. Therefore, the goods were of Afghanistan origin and hence were fully exempted by Notification No. 99/2011. On the other hand, according to the Revenue, the goods were exported from Karachi, Pakistan and hence were chargeable to duty @ 200%. 7. Learned counsel for the appellant made the following submissions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs 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 through Pakistan and have not been exported from Pakistan and therefore, duty @200% cannot be charged. (k) The Principal Commissioner has denied the benefit of the notification for the reason that the Bill of Lading mentioned Port of Loading as Karachi- Pakistan which is not correct because the Bill of Lading was issued on behalf of the Carrier who shipped the goods in a container from Karachi to Nhava Sheva and the goods were carried by a different operator from Afghanistan up to Karachi. (l) The Principal Commissioner has also observed that the Transport Note and the Trip Duration Report (TDR) did not have the seal and signature of the Customs officer at the Port of Destination. Both these are meant for transiting cargo through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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 Herat or any other place in Afghanistan. The Bill of Lading is the document of title. It is issued by the Master of the Vessel or his agent, say, the Shipping Agent, acknowledging receipt of the goods. It indicates what has been received (say, container number so and so) and what it is said to contain, how it is sealed (seal number, etc.). If there are any remarks about the condition of the goods (say, leaking or damaged), it is called a "dirty bill of lading‟ and otherwise, called a "clean bill of lading‟. The responsibility of the shipping line is to deliver to the consignee the container (or other form of goods) in the form in which it has been received on production of the Bill of Lading. Since the Master of the Vessel cannot wait for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 from Chaman (Afghanistan-Pakistan border) to Karachi by transporter M/s. Bolan Logistics. Therefore, insofar as these two documents are concerned, the port of destination is Karachi which is then the Port of Loading in the Bill of Lading issued by the Shipping Line. While these documents were signed at Chaman by the Pakistan Customs Officer, they were not signed by the Pakistan Customs Officer at Karachi. The suspicion of the Principal Commissioner is that this a missing link in establishing that the goods which were imported into India were those covered by these two documents which, in turn, establish their origin in Afghanistan. 15. What is essential, in our considered view, is a continuous chain of documents which would establish that the goods exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 other grounds of suspicion by the Principal Commissioner are that the Transit Certificate was not signed by the Pakistan Customs Officer and the Bill of Lading does not indicate the place of receipt of the goods and only mentions the Port of Loading as Karachi. We note that the Transit Certificate was issued by the Afghanistan authorities and not by Pakistan authorities. While the appellant got a copy of the Transit Certificate endorsed by the Pakistan Customs and produced later, we do not find it at all necessary. Indian Customs cannot insist that the importer has to get a document issued by the Afghanistan Government also signed/ endorsed by the Pakistan Customs and there is no such requirement in the exemption notification. 19. As far as the Bill of Lading is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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