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Pelicon Rubber V/S Commr. of C. Ex., Cus. & S.T., Hyderabad-II

    Final Order No. A/30131/2017 in Appeal No. C/26498/2013

    Decided On, 01 February 2017

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad

    By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
    By, MEMBER

    For Petitioner: Y. Sreenivasa Reddy, Advocate And For Respondents: Guna Ranjan, Superintendent (AR)



Judgment Text


1. The appellants imported EPDM Rubber from M/s. Mitsui Chemicals, Inc, Japan. They filed Bill of Entry No. 6649432, dated 25-4-2012 along with other documents including Xerox copy of certificate of origin for clearance of the said goods from customs at ICD, Hyderabad. The goods of Japanese origin are exempted from BCD as provided under Notification No. 69/2011-Cus, dated 29-7-2011 read with Customs Tariff (Determination of Origin of Goods under the Comprehensive Economic Partnership Agreement between the Republic of India and Japan) Rules, 2011 notified under Notification No. 55/2011-Cus. (N.T.), dated 1-8-2011. The said notification stipulated the condition that the exemption would be available on the submission of certificate of origin. The appellant cleared the goods on payment of Basic Customs Duty (BCD) of Rs. 3,75,756/- without availing exemption for the reason that at the time of import, the original copy of the certificate of origin was misplaced at their Bank and only Xerox copy of the same was available with them. Thereafter, they obtained a certified copy of the certificate of origin and filed refund claim for the BCD to the tune of Rs. 3,75,756/- paid by them. The original authority rejected the refund claim observing that the appellant has produced only a Xerox copy at the time of import and also that the appellant did not intimate their intention to avail the benefit of exemption at the time of import. Thus doubting the veracity of the certified copy of the certificate of origin, the original authority denied the refund. The appellants filed appeal before the Commissioner (Appeals) and vide order impugned herein, the Commissioner (Appeals) upheld the rejection of refund. Hence this appeal. On behalf of the appellant, the ld. Counsel Sh. Y. Sreenivasa Reddy adverted to the Notification No. 55/2011-Cus. (N.T.) and pointed out that the Rules made thereunder provides for claiming refund at a later stage. That when the importer does not possess the certificate of origin at the time of import, a refund claim can be filed. That the appellant had misplaced the original copy of the certificate of origin issued to them and therefore the goods were imported by furnishing necessary documents along with the Xerox copy of the certificate of the origin. That the certified copy of the certificate of origin was issued to the appellant on 5-9-2012 and refund claim was filed on 24-9-2012 along with the said certified copy. He submitted that Appendix A to Annexure 2 provides for Implementing Procedures. It is stated in sub-rule (f) of Rule 3 of the said Implementing Procedures, the procedure for obtaining a certified true copy in case the original certificate of origin is lost. The appellant has obtained the certified copy of the certificate of origin as per this provision and submitted the refund claim. That the rules itself provides for obtaining certified copy and filing of refund claim. The appellant has rightly filed the refund claim along with the certified copy. That the rejection of refund is unjust and illegal.

2. Against this ld. AR Sh. Guna Ranjan reiterated the findings in the impugned order. He submitted that the appellant while making the import did not intimate to the department their intention to avail the benefit of exemption under the notification. Further, at the time of import they had produced only a Xerox copy. The adjudicating authority has examined the certified copy produced by the appellant and observed that the appellant failed to produce the specimen signatures of the authorities of country of origin who issued the certificate. That the appellant has produced only an attested copy of the certificate of origin stating that the original certificate was misplaced by their bankers. Original certificate is mandatory for claiming the benefit under the Notification and therefore the authorities below have rightly rejected the refund.

3. I have heard the submissions made by both sides and perused the records.

4. The issue posing for consideration is whether the certified copy of certificate of origin can be accepted for giving the benefit of exemption of BCD duty on the goods. For better appreciation sub-rule (c) of Rule 3 in the Implementing Procedures is reproduced as under:

(c) where an importer of an originating goods at the time of importation does not have in his possession a certificate of origin, the importer may, in accordance with the laws and regulations of the importing Party, apply for a refund of any excess customs duties paid or deposit imposed as a result of the goods not having been granted preferential tariff treatment, on presentation to the customs authority of the importing Party the certificate of origin issued in accordance with paragraph 3 of Annexure 2 and, if required, such other documentation relating to the importation of the goods.
5. The above Rule itself expressly states that when the importer is not able to produce the certificate of origin at the time of import or when the same is lost, he can obtain certified copy of certificate of origin and apply for refund Sub-rule (f) of Rule 3 of the very same procedures as to how to obtain the certified copy. Sub-rule (f) of the said procedures is reproduced as under:

(f) in the event of theft, loss or destruction of the original certificate of origin before the expiration of its validity, the exporter or its authorised agent may request the competent governmental authority of the exporting party or its designees to issue a new certificate of origin with a new certification number on the basis of the export documents in their possession, in which case the original certificate of origin should be invalidated:

Provided that the new certificate should bear in Box 8 of Appendix B to Annexure 2 the words "CERTIFIED TRUE COPY":

Provided further that the date of issuance and the certification number of the original certificate of origin should be indicated in the new certificate of origin:

Provided that the new certificate of origin shall be valid during the original term of the validity of the original certificate of origin.

The authorities below have denied the refund mainly on two grounds. Firstly that the appellant has not intimated the department their intention to avail the benefit of exemption. Secondly that they have not produced the original certificate of origin. It is not disputed that the appellant has filed the Xerox copy along with other documents and Bill of Entry at the time of import. The said conduct of the appellant in filing the Xerox copy of the certificate of origin itself serve as intimation to department regarding their intention to avail the benefit of exemption. The second ground is that the certified copy of the certificate of origin cannot be accepted as valid document. The authorities below have repeatedly held that the appellant failed to produce the specimen signatures of the authorities who issued the certificate of country of origin. But in the procedures, no such

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condition is seen stated. Further, in Part 2 - Product Specific Rules, in Operational Certification Procedures (see Rule 16) lays down that in case of doubt of certificate of origin the Customs Authorities of the importing country can call for information from the exporting country. The department has no case that they conducted enquiry and found that the certificate copy is fake/forged. Therefore, I do not find any valid ground for the department to doubt the veracity or validity of the certified copy of certificate of origin which is fully in order as per sub-rule (f) of Rule 3 of the Implementing Procedures. In view thereof, I hold that the rejection of refund is unjustified. The impugned order is set aside. The appeal is allowed with consequential reliefs, if any.
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