The court upheld the validity of a public notice requiring explanations for identical FOB values in import documents, emphasizing compliance with preferential trade agreements.

JUDGMENT :

1. Heard learned Counsel for the parties.

2. The challenge in this Petition is to the public notice dated 24 June 2024 (Exhibit ‘B’), including Clause 3(ii) of this public notice dated 24 June 2024.

3. The Petitioner, in addition to challenging the above public notice dated 24 June 2024, has also applied for the following reliefs:-

“(b) That this Hon’ble Court be pleased to issue a Writ of Mandamus, or any other suitable writ, order or direction declaring that the Petitioners are entitled to clear the goods for home consumption after availing the benefit of Notification No.46/2011 Customs dated 01.06.2011 in regard to the goods imported by the Petitioners;

(c) That this Hon’ble Court be pleased to direct the Respondents to assess the Bill of Entries being Exhibit: F, G and H hereto finally for home consumption granting benefit of Notification No.46/2011-Customs dated 01.06.2011. return the Bank Guarantees and cancel the bonds.”

4. Mr Bharti learned Counsel for the Petitioner submits that the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of Member states of the Association of Southeast Asian Nations (ASEAN and the Republic of India), Rules 2009 provide for the situations in which an importer is entitled to the benefit under the preferential trade agreements. He submits that the impugned public notice, including Clause 3(ii) thereof, conflicts with the 2009 Rules and, to that extent, must be either struck down or directed to be withdrawn. He submitted that the Petitioner is forced to clear the goods provisionally by providing inter alia bank guarantees and bonds on account of the public notice and Clause 3(ii).

5. Mr Bharti referred to Rules 3 and 22 of the 2009 Rules to substantiate his contention.

6. Mr Chandrashekhar learned Counsel for the Respondents submitted that Clause 3(ii) of the public notice only requires an importer to submit an explanation for the identical FOB values mentioned in the two documents, viz., FTA-COO and the third country invoice at the time of submission of the assessed bill of entry. He submitted that such information/explanation is necessary to enable the Respondents to determine whether there is appropriate compliance with the 2009 Rules. He submitted that there is nothing illegal or ultra vires in the public notice.

7. Mr Chandrashekhar submitted that the determination is always in terms of the 2009 Rules or any other statutory rules as may be applicable. He submitted that in at least six other cases, such determination has been made by the Respondents, which, to the best of his knowledge, has not been challenged by the Petitioner. He submitted that seeking an omnibus relief of assessing the bill of entries at Exhibits ‘F’, ‘G’ and ‘H’ or granting the benefit of the notification dated 1 June 2011 is impermissible and, in any event, should not be entertained. He reiterated that the public notice requires the importer to include an explanation for identical FOB values mentioned in the two documents. This explanation would be considered in the light of the applicable rules.

8. We have considered the rival contentions in the context of the material placed before us and the 2009 Rules.

9. The public notice no. 55 of 2024, dated 24 June 2024, deals with guidelines for notification under the CAROTAR 2020 of the country-of-origin certificates (COO) issued under various preferential trade agreements (commonly referred to as Free Trade Agreement-FTAs).

10. The public notice, to begin with, invites attention to Section 28DA of the Customs Act, 1962, read with Rules 4, 5 and 6 of the Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020, also known as CAROTAR 2020, and CBIC circular No. 38/2020 Customs 21 August 2020, which empowers the proper officer to seek information and supporting documents from the importer claiming a preferential rate of duty, if the proper officer has reason to believe that the origin criteria p