Bombay High Court
The Commissioner Of Customs Ns-I vs Lilaram Gobindram on 31 July, 2017
Bench: Anoop V. Mohta
30-CUAPP-18-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOMS APPEAL NO. 18 OF 2016
WITH
NOTICE OF MOTION NO. 246 OF 2016
IN
CUSTOMS APPEAL NO. 18 OF 2016
The Commissioner of Customs NS-I ... Appellant.
V/s.
Lilaram Gobindram ... Respondent.
---
Mr. Pradeep S. Jetly, Advocate for the Appellant.
Mr. Anil Balani, Advocate for Respondent.
---
CORAM : ANOOP V. MOHTA AND
SMT. ANUJA PRABHUDESSAI, JJ.
DATE : 31st JULY, 2017
ORAL JUDGMENT (PER ANOOP V. MOHTA, J.):
This is an appeal under Section 130 of the Customs Act,
1962 (for short "the Act")referred by the Appellant/Revenue
Department against order dated 28th April, 2015 passed by the
Customs Excise & Service Tax Appellate Tribunal, West Zonal
bench at Mumbai (CESTAT).
2 The proposed question of law is as under:
"whether the CESTAT is right in law in allowing
the benefit claimed by the Respondent?"
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3 Heard the counsel for the parties finally.
4 The CESTAT, after considering documents and the
keeping in mind, the requirement of certificate of origin so
contemplated under notification dated 13th August, 2008
referring to Customs Tariff (Determination of Origin of
Products under the Duty Free Tariff Preference Scheme for
Least Developed Countries) Rules, 2008 has recorded:
"9. It can be seen from the above reproduced certificate of
origin, the goods have been consigned from union of
Comoros to the importer herein. It can also be noted that
the said certificate of origin does mention the invoice
number issued by the exporter. We perused the said invoice
annexed at page No. 54 of the appeal memoranda and note
that and the said invoice is the same invoice which is
mentioned in the certificate of origin as reproduced
hereinabove. Having convinced ourselves that the certificate
of origin does indicate that the goods were exported from
one of the countries mentioned in the appendix to
Notification No.96/2008 as amended, we now address to
the lapses pointed out by the lower authorities."
"10. The main contention of the Departmental
representative as also of the lower authorities is that the said
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certificate of origin is not signed at point No. 11 by the
exporter. As can be seen from the above reproduced
certificate of origin, the said certificate has been signed by
the "African Commodities House Ltd." It is to be seen that
the procedure for presentation of certificate of origin under
the duty free tariff difference scheme for the least developed
countries at Annexure-B lays down the procedure which we
reproduce.
"The certificate of origin shall be issued by the relevant
issuing authority of the exporting country at the time of
exportation, or within 3 working days from the date of
shipment, whenever the products to be exported can be
considered originating in that country within the meaning
of the rules of origin for the Scheme.
In exceptional cases where a certificate of origin has not
been issued at the time of exportation or within 3 working
days from the date of shipment due to involuntary errors
or omissions or other valid causes, the certificate of origin
may be issued retroactively but no longer than 45 days
from the date of shipment, bearing the word "Issued
Retroactively".
The Following time limit for the presentation of the
certificate be observed:
a) The validity of the certificate of origin shall be twelve
months from the date of its issuance.
b) Certificate of origin must be submitted to the Customs
Authority within the validity period.
Where the certificate of origin is submitted after the
expiration of the validity of the certificate of origin, such
certificate is still to be accepted when failure to observe
the time limit results from force majeure or other valid
reasons beyond the control of the exporter.
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In all cases, the relevant Customs Authority in India may
accept such certificate of origin provided that the products
have been imported before the expiry of the validity of the
certificate of origin.
The discovery of minor discrepancies between the
statements made in the certificate of origin and those
made in the documents submitted to the Customs
Authority of India for the purpose of carrying out the
formalities for clearance of import, the products shall not
ipso facto invalidate the certificate of origin, if it does in
fact correspond to the said products".
"11. It can be seen from the above reproduced procedure
that authorities have been given instructions, which when
read holistically, would mean that minor discrepancies
would not ipso facto invalidate the certificate of origin if
the same in fact corresponds to the product imported. It
can be seen that the certificate of origin needs to be issued
by the government authorities designated by the
government of exporting beneficiary country. In the case
in hand, as already held by us the certificate of origin has
been insured by "African Commodities House Ltd." seems
to us to be an authority approved by the union of
Comoros. This our view is fortified from the fact that
identical goods imported at other various ICDs were
certified by the same issuing authority and was accepted
by the revenue authorities and not disputed the issuing
authorities credentials".
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"12. We find strong force in the contentions raised by the
learner consultant that the ratio of the judgment of
Hon'ble Supreme Court in the case of Baharat diagnostic
Center will apply in this case. With respect we reproduce
the ratio as is in paragraph No. 5.
"With regard to the interpretation and construction of a
notification granting exemption, it is settled that at the
first instance, strict interpretation would apply, that is
to say in the case of ascertaining its applicability.
Thereafter, the Court may adopt the liberal approach
within the particulars of the said notification. The case
of Gammon (I) Ltd. V. Commr. Of Customs, (2011) 12
SCC 499 = 2011 (269) E.L.T. 289 (S.C.), reiterated
the well-settled position of law that a provision
providing for an exemption has to be construed strictly.
The following cases would, further make the position of
law clear on this point."
"13. In view of the foregoing and in the peculiar facts and
circumstances of this case, we set aside the impugned
order with a direction to the lower authorities to assess
the bill of entry extending the benefit of Notification No.
96/2008, as amended and allow the clearances of the
goods imported."
5 After hearing the parties and after going through the
certificate and the related documents, the rival contention
so raised, in the present facts and circumstances, we are of
the view that the CESTAT has considered the merits of the
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matter after the verification of the documents and arrived
the correct conclusion and further directing to allow the
clearances of the goods imported is well within the power
and based upon the record. There is no perversity and/or
illegality in the order. The CESTAT has power to consider
all the documents and record to give final finding on facts.
6 Therefore, taking overall view of the matter and
keeping in mind the scope and object of Appeal under
Section 130 of the Customs Act 1962, there is no case is
made out to interfere with the findings (Chandna Impex
Pvt. Ltd. Vs. Commr. of Customs)1. There is no question of
law involved. The Appeal and the notice of motion are
disposed of accordingly. No cost.
(ANUJA PRABHUDESSAI, J.) (ANOOP V. MOHTA, J.)
1 2011 (7) SCC 289
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