TMI Blog2024 (1) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 company did not provide cost data due to data privacy and since the Board was of the opinion that under AIFTA cost data cannot be denied, therefore, in the present case in the Year-2018, since impugned goods have been supplied by M/s. Guan Chong Cocoa as manufacturer, the proceedings for denial of exemption despite claim of 47% value addition have been initiated even without attempting to verify the documentary evidence by way of the Certificate of Origin by the designated authority issued under the agreement. It is found that this is nothing but attempt to make case on the basis of assumptions and presumptions even without as much as verification having been attempted to be made by the authorities. The same is therefore, not maintainable. Department has been provided a documentary evidence by way of a stipulated certificate from the designated authority under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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 agreement but did not furnish the cost-structure of the RVC on the ground of data privacy. It was further asserted that denial of costing structure of imported Cocoa Powder was not in conformity to Article 16(4) of the Operational Certificate Procedure to the Rules of Origin under ASEAN India FTA. Subsequently a letter dated 27.09.2018 Refer pages 161- 163) was written by the Commissioner of Custom. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 01.07.2011 for concessional rate of Customs duty is governed under Rule AIFTA, 2009. The Certificate of Origin 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sia). Moreover, a cost analysis was also been given wherein the imported Cocoa bean and Cocoa Cake has been mentioned as 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to issue such certificate under ASEAN FTA (AIFTA) mentioning the Regional Value content (RVC) to be much higher than stipulated 35% 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 tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the department in the matter of M/s. SURYA LIGHT Vs. COMMISSIONER OF CUSTOMS, BANGALOR as reported in 2008 (226) E.L.T 74 (Tri. Bangalore) 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 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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