TMI Blog2023 (7) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the CEPCI, Kerala there would not be any hesitation to say that the report creates more confusion than giving a fonding/opinion on the product - it can be said that presence of Cardanol was noticed and if the sample is roasted traces of Cardanol will be less but the report lacks the basic clarity as to if Cardanol presence is much more than the same is supposed to be present in roasted cashew! Likewise at point No. 4, it is clearly mentioned that Fatty Acid is found to be higher above 3% and as per FSSAI standard the maximum limit prescribed is 1.25% for plain cashew. If this is the observation, then the sample should have been considered as roasted cashew since Fatty Acid presence is above 3% as for plain cashew Fatty Acid content should be less than 1.25% but surprisingly it (the report) said that on the basis of the above fact it was concluded that the sample was Plain/Raw Cashew Kernel (baby bits). The only conclusion that can be drawn is that the report is devoid of all logic and it is apparently prepared to favour the department but it contains the basis of such preparation that is favouring the stand taken by the importer appellant - On perusal of the report, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Tariff (Determination of origin of goods) Act under the preferential trade agreement between the Government of Members state i.e. India in the instant case and the ASEAN. Intelligence was gathered by DRI that Appellant mis-declared the imported goods as Roasted Cashew Kernel falling under Tariff Item No. 20081910 and sought for denial of the benefit by proposing differential duty, interest with proposal for confiscation and redemption fine etc. as the same goods were held to be Plain Cashew Kernel . Further investigation, Laboratory testing by the Cashew Export Promotion Council laboratory at Kerala, statement of the proprietor Mr. Okhayasho etc. reveal that imported goods were not roasted cashew and on the earlier occasion also. vide Bills of entry No. 5003672 dated 30.01.2018 another consignment of cashew from the same country of origin Vietnam was imported by the Appellant and exemption was also availed by it. Accordingly differential duty of Rs.22,47,676/- was demanded for the live consignment and Rs.19,68,480/- was demanded from past consignment through show-cause notice with proposal for interest, penalty, confiscation of live consignment and penalty against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods to avail the benefit of duty exemption but it is not dealt in accordance with the clearly stipulated procedure that was required to be followed by the Customs Authority of the importing country in case they have doubts about the certificate of origin issued by the competent authority of the exporting country as that has mandated resolving of such doubt in consultation with the competent authority issuing the certificate but the same procedure has been completely ignored by the Indian Customs to be followed that might have adversely impacted even the bilateral treaty and reputation of India in the international forum. Further, he submitted that certificate received from Food Safety of Standard Authority of India (FSSAI), required to be filed at the time of clearance of imported goods, clearly noted that the sample confirmed to the specifications prescribed under the Food Safety and Standard Act, 2006 and Regulations made thereunder for which they have no objection for release of the said consignment and, therefore, withholding the goods and demanding additional duties of Customs by the Authority is disrespectable to the international treaties. He placed his reliance on the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals), he further submitted that the CEPCI had tested and opined that the samples were plain/raw Cashew Kernel broken pieces and not Roasted Cashew Kernel for which prima facie there was mis-declaration of goods so as to avail benefit of duty exemption and the goods failed to qualify for the benefits provided under AIFTA vide Notification No. 48/2011-Cus. dated 01.06.2011. She concluded his argument in pointing out that FSSAI had only confirmed the specification but not conducted any test to determine it as roasted cashew or plain cashew and the certificate of origin from the exporting country did not reveal that any test was conducted at the shippers end, for which the order passed by the Commissioner (Appeals) needs no interference by this Tribunal. 5. I have perused the case record, test report, relevant notifications and the relied upon case laws. At the outset it can be said that para 3 of the Notification No. 189/2009-Cus. dated 31.12.2009 stipulates country of origin criteria and para 13 clearly provided provisions for acceptance of certificate of origin, it reads: Certificate of Origin Any claim that a product shall be accepted as eligible for preferential tarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in/Raw Cashew Kernel (baby bits). 7. Therefore, the only conclusion that can be drawn is that the report is devoid of all logic and it is apparently prepared to favour the department but it contains the basis of such preparation that is favouring the stand taken by the importer appellant. The report remained inconclusive as there was an indication to send analysis of roasting of the sample product subsequently that was not done since April, 2018 till they produced some roasting reports through the concerned Commissionerate after its repeated insistence that had been forwarded to the AR office by the Deputy Commissioner of Customs, JNCH vide his letter dated 25.09.2022. Paragraph 4 of his letter reads as follows: 4. Attached is the detailed thread of the said e-mail communication(s) from CEPCI Lab, Kerala wherein Scientist of CEPCI Lab has clarified that the subject samples drawn vide panchanama dated 21.03.2018 were not used to conduct the said study. However, based on the study so conducted, Scientist reiterated that the subject samples drawn vide panchanama dated 21.03.2018 are/were not roasted. 8. On perusal of the report, it is noticed that on which date those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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