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TMI Blog2024 (1) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... time of clearance of goods. 2. Subsequently a Show Cause Notice dated 30.05.2019 was issued to the appellant challenging therein the "Certificates of Origin" on the ground that the goods were derived from Cocoa Beans of Ghana Origin and the regional value addition was only approximately 13-17% as against the minimum qualifying value of 35% of FOB value as per the aforesaid Notification No. 46/2011-Customs dated 01.06.2011 read with Notification No. 53/2011 Customs dated 01.07.2011. The allegation was based on the purported enquiry conducted by DRI in coordination with the Director (ICD) of CBEC, New Delhi. In this regard, letter dated 10.01.2014 of Director (ICD) to Minister (Economic), MITI, New Delhi, High Commission of Malaysia in New Delhi and letter dated 07.05.2014 from Director ICD to Chairman, CBEC New Delhi wherein it was doubted that the Regional Value Content (RVC) of the Cocoa Powder imported into India from Malaysia did not have the minimum value content of 35% or more. But on enquiry the concerned authority at Malaysia had confirmed that the raw material used in the production of finished goods has fulfilled the 35% RVC condition prescribed under ASEAN-India agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigin in Form A 1 has been correctly issued by the proper authority of Country of Origin viz. Malaysia. As per Article 16(a) the concerned department of importing country may request a retroactive check within six-months timeframe prior to the date of exportation subject to the prescribed procedure therein. The request for retroactive check may be asked giving specific reasons. The issuing authority shall respond to the request promptly within three months and the report should be submitted by the issuing authority within six months. 4.1 In the instant case, no communication relating to the appellant's import was made to the issuing authority of Certificate of Origin nor any report was sought for with regard to any actual process adopted by the manufacturer and also regarding determination whether the subject goods are originating or not. No RVC content was got verified in respect of the subject import. 4.2 The Show Cause Notice dated 30.05.2019 only refers to some communications mentioned in Para 2.3 supra especially letter dated 10.01.2014 by Director (ICD), CBIC, New Delhi to MITI, High Commission of Malaysia, New Delhi where only some previous exports made by one M/s Mord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s totally 53.0036% and balance raw material plus labour cost and Overhead Cost works out to 47%. The first appellate authority did not consider these acts, nor the submissions made by the appellant and vaguely repeated the allegations made in the Show Cause Notie and subsequently confirmed in the Original-in-Original 4.6 The case laws of ALFA TRADERS Versus COMMISSIONER OF CUSTOMS, COCHIN - 2008 (223) E.LT. 289 (Tri. - Bangalore) and M/S SURYA LIGHT VS. COMMISSIONER OF CUSTOMS, BANGALORE [2008 (226) E.LT. 74 (Trl. - Bangalore)] has been relied upon by the Commissioner (Appeals) to hold that if after investigation it is found that there is violation of the conditions mentioned in the relevant notification of Certificate of Origin then the benefit can be denied. However, in these cases investigation for the imports itself were made to deny the benefit but in the instant case no such investigation or inquiry was conducted. Further the Certificate Of Origin in the instant case was never referred to the issuing authority nor cancelled by said member state and hence, valid for the purpose of concessional rate of duty in respect of the import from ASEAN Countries to India and benefit hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % i.e. 47%. The Free Trade Agreement stands incorporated in the Customs Tariff vide Notification No. 46/2011-Cust., dated 01.06.2011 available to impugned product i.e. Natural Cocoa Power originating from Malaysia. The differential duty of Rs. 6,44,233/- was demanded by the department, denying benefit on the ground that in another investigation taken up by DRI in respect of certificate of origin pertaining to another party in the year 2014, Cocoa Beans were suspected to be derived from Ghana and not Malaysia by that importer. The matter was taken up by director (ICD) of CBEC, New Delhi with the High Commissioner of Malaysia in Delhi vide letter F. No. 456/12/2013-Customs-V dated 10.01.2014 for verification. The party involved in that case of the year 2014, was M/s. Morde Foods Pvt. Ltd., and the exporters were two Malaysian companies. In response to the letter of Director (ICD), CBIC, New Delhi, the Ministry of International Traders Industry (MITI) vide letter dated 18.03.2014 informed CBEC that they had conducted internal investigation by visiting two factories of M/s. J B Cocoa and M/s. Guan Chong Cocoa who were suppliers in that case and both had confirmed that value addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angalore) and 2007 (217) E.L.T. 437 reported in ALFA TRADERS Versus COMMISSIONER OF CUSTOMS, COCHIN are clearly distinguishable, as in case of former invoice was faked and in the latter judicial notice of no production in country of origin of the relevant agricultural product was taken and percentage of value addition in concerned country was never in dispute. 9. In view of the forgoing, in the present case in the face of certificate of origin having been produced and no verification process having been conducted before issuance of show cause notice, the demand of duty cannot be sustained. We also find that the appellant has correctly relied from the decision of M/s. R.S INDUSTRIES (ROLLING MILLS) LTD. Versus COMMISSIONER OF C.EX., JAIPUT-I as report in 2018 (359) E.L.T. 698 (Tri. - De.) to emphasize that the certificate issued by the competent authority of exporting country is to be given weightage. Similarly, the decision of Hemang Resources Ltd V/S Commissioner of Customs (Prev.) Jamnagar of this bench as reported in 2022 (381) ELT 404 (Tri. Ahmed.) is squarely applicable, which made incumbent upon department to discharge burden to get verification done from concerned Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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