ORDER :

The petitioner is an importer of Areca Nuts through various Indian ports. The present writ petition is filed in relation to a consignment comprising 17,700 kgs of Areca nuts through Chennai port. On the basis of bill of lading dated 15.02.2021 and bill of entry (B/E) dated 26.02.2021 accompanied by a certificate of origin (COO) dated 15.02.2021 issued by the Department of Commerce, Colombo, Sri Lanka, the petitioner sought the benefit of import with an exemption from customs duty under Notification No.26 of 2000.

2. Queries were raised by the Assessing Authority and an assessment made under the Faceless Assessment procedure exercising powers under Section 17 of the Customs Act, 1962 (Act) on 01.03.2021. Prior thereto, the respondent had raised a dispute in regard to the declared value of the consignment that the petitioner had accepted. The petitioner also undertook to procure a no objection certificate (NOC) from the Food Safety and Standards Authority of India (FSSAI). Accordingly, an agency appointed under the provisions of the Food Safety and Standards Act, 2006 (FSSA Act), examined the consignment and opined that the same conformed to the standards laid down under the applicable regulations. No objection was given for the release of the consignment from the port.

3. The petitioner remitted the duty as assessed under Section 17 and sought the issuance of an order for release of the consignment, referred to as an ‘out-of-charge’ order. The COO produced was defaced by the appropriate authority as a precursor to release of the goods and physical examination of the goods waived. While the petitioner was thus awaiting release of the goods, an objection came to be raised by R2 in regard to the authenticity of the COO issued.

4. The first point raised by the authority was whether the date stamped upon the COO was ‘07’ or ‘17’. A clarification dated 19.03.2021 was obtained from the Department of Commerce, Colombo, Sri Lanka, the certificate issuing authority, though overseas suppliers M/s.New Ceylon Spice Exports (Pvt) Ltd. Sri Lanka, to the effect that the certificate had been issued on ‘17’.02.2021 only. The clarification also confirmed that the COO had been signed by one Ms. Vireshika, Assistant Director of Commerce, who was an authorized officer of the Department of Commerce, Colombo. The above clarification was itself signed by one Mr. Somasena Mahadiulwewa, the Director of Commerce.

5. This having been cleared, the second objection raised by R2 was in regard to a stamp affixed on the COO which read 'issued retrospectively'. According to the counter filed and the oral submission made by the learned Junior Standing Counsel, the trade agreement between India and Sri Lanka does not provide for the issuance of a COO retrospectively.

6. According to the respondent, there are trade agreements that specifically permit the issuance of a COO retrospectively/retroactively in cases where the COO was not issued at the time of exportation or proximate thereto, but on a later date. He cites the (i) Customs Tariff (Determination of Origin of Products under the Duty Free Tariff Preference Scheme for Least Developed Countries) Rules 2015 (Notification No.29 of 2015-Section 15(8) (ii) South Asian Free Trade Area Agreement (SAFTA) (Article 10) (iii) Association of Southeast Asian Nations (ASEAN) (Annexure 3 to part 10), in this regard.

7. The Indian Sri Lankan Free Trade Agreement (ISFTA), which governs the import of the consignment in question is silent on this aspect and for this reason, the respondents would state that the COO needs further verification. As regards clarification issued by the Department of Commerce, they would eschew the same stating that it has not been received through proper channel. These explanations do not emanate in the course of correspondence between the parties or, most importantly, in the impugned order itself and are raised only in the counter.

8. The impugned order merely raises a demand of a sum of duty rejecti