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TMI Blog2025 (5) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... reventive), Kolkata confirming a demand of Rs.53,92,169/- under Section 28(8) of the Customs Act The Act together with interest under section 28AA, besides imposing a penalty of Rs.5,40,000 jointly and severally on M/s. Neelkanth Mahadev International, Shri Anil Pahariya, Shri Rajkumar Agarwal - the latter two being partners of the importing firm. The order also directs confiscation of 200 metric tonnes of Fortified Refined Palm Olien imported vide subject two Bills of Entry. The same was allowed redemption on payment of redemption fine of Rs. 40.00 lakh. An amount of Rs.27,75,000/- realised on account of sale of 37 metric tons of Rice Bran Oil in terms of order dated 13 11. 2019 passed by Calcutta High Court was also ordered to be appropriated. 2. Briefly stating the importer vide Bill of Entry No. 705999 dated 13.09.2018 and Bill of Entry No. 705154 dated 19.09.2018, imported 200 metric tons of refined palm olien from Bangladesh, claiming benefit under South Asian Free Trade Agreement(SAFTA). At the time of import, the appellant produced before the authorities, the Country of Origin (COO) certificate as issued by the Bangladeshi authorities, seeking exemption from payment of bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Proper Authority empowered in terms of SAFTA agreement. The ld. Counsel for the appellant also questions the jurisdiction of the customs authorities to doubt the veracity of the said certificates. 7. The ld.AR reiterates the order of the lower authority and justifies the same as correct and in accordance with law. He submits that with no value addition percentage having been indicated, SAFTA benefit cannot be extended to the appellants. 8. Having heard the two sides and perused the case records, it turns out from the facts on record that the appellant post assessment and payment of duty, however, prior to the goods being given out of charge, of their own accord, removed the goods from the notified area. To this admitted contention by the appellant, it is their case that they were under a bonafide belief that the consignments were ready for clearance upon payment of duty and that there was no reason to not believe that the COO certificate was incomplete or issued improperly as the same was given by the appropriate authority of the exporting nation and which the Indian authorities were bound to accept as per the mutual agreement between the two countries. 9. The case of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take away the goods. Moreover, it is his contention that they were first time importers. 10. To appreciate the facts of the matter, it would be appropriate to state the legal provisions as applicable to the issue at hand. Legal provisions : - (a) Section 46 of the Customs Act, 1962 provides that the importer of any goods, other than goods intended for transit or transshipment, to make entry thereof by presenting electronically to the proper officer a bill of entry for home consumption or warehousing in the prescribed form and sub section (4) provides that the importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry. (b) Section 47 of the Customs Act, 1962 provides that where the proper officer is satisfied that any goods entered for home consumption are not prohibited and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. (c) Section 42 of the Customs Act, 1962 provides that the person in charge of conveyance which has brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... column (4) below shall mean that the final product is classified in a heading at the six digit level of the Harmonised Commodity Description and Coding System differently from those in which all the non-originating materials used in its manufacture are classified. 4. The DVA mentioned in percentage in column (4) below shall mean the minimum value addition in the Exporting Contracting State, calculated as per the following formula : DVA=FOB value of the export product - value of non-originating materials -------------------------------------------------------------------------------------------- FOB value of the export product 11. We find that the Country of Origin certificate number EPB/18/8309 dated 11.09.2018 submitted with reference to Bill of Entry number 705999 dated 13.09.209 has categorised 100 MTS of Refined Palm Oil in Category B, which indicates that the goods covered by the product met the origin criteria according to Rule 8 and it ought to be followed by the value of non-originating material expressed as a percentage of the value of the product. Likewise in respect of Bill of Entry No. 705154 dated 19.9.2018 for which Country of Origin Certificate No. EPB/18/oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported goods and in terms of Section 2(14) of the Customs Act read with Section 2(23) and Section 2(25) ibid the said goods no longer remain imported goods. Be as it may, while it is not disputed that upon payment of duty leviable, the said goods had met the basic criteria of the definition of the "dutiable goods". They however continued to be imported good, as no order of clearance for home consumption was issued. What is relevant to note is the fact that Section 46 and Section 47 of the act ibid are concerned with the import processes and clearance of such imported goods into the domestic sector (home consumption). Section 47 warrants an "order" to be made by the Proper Officer for "clearance of goods for home consumption." Thus, removal of goods, in the absence of such an order is a clear contravention of law, and it cannot be held that all due formalities concerned with import were over, in the absence of such a certificate. Payment of duty on imported goods is one of the several acts as may be required to be satisfied, before allowing the imported goods to move out of the Customs area, into the domestic sector. 14. The appellants have used their accounting documents to est ..... X X X X Extracts X X X X X X X X Extracts X X X X
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