Page 39 - ELT_1st July 2020_Vol 373_Part 1

2020 ] “CERTIFICATE OF ORIGIN” UNDER CUSTOMS LAW A13

cate of origin, a copy of commercial invoice is also attested by the said authorities
[Why we need Certificate of Origin, available at - https://howtoexportimport.com].
Customs Tariff Act, 1975 and CO
Relevance of Certificate of Origin can be found in Section 5 of the Cus-
toms Tariff Act, 1975, which reads as under :
SECTION 5. Levy of a lower rate of duty under a trade agreement. -
(1) Whereunder a trade agreement between the Government of India and
the Government of a foreign country or territory, duty at a rate lower than
that specified in the First Schedule is to be charged on articles which are the
produce or manufacture of such foreign country or territory, the Central Gov-
ernment may, by notification in the Official Gazette, make rules for determin-
ing if any article is the produce or manufacture of such foreign country or ter-
ritory and for requiring the owner to make a claim at the time of importation,
supported by such evidence as may be prescribed in the said rules, for as-
sessment at the appropriate lower rate under such agreement.
(2) If any question arises whether any trade agreement applies to any coun-
try or territory, or whether it has ceased to apply to India or any foreign coun-
try or territory, it shall be referred to the Central Government for decision
and the decision of the Central Government shall be final and shall not be lia-
ble to be questioned in any court of law.
Thus, we see C.B.I. & C. issue different rules pursuant to FTAs/RTAs
which India enters with other country/ies. For example - “Customs Tariff (Deter-
mination of Origin of Goods under Preferential Trade Agreement between the Govern-
ment of Members States of the Association of South-East Asian Nations (ASEAN) and
the Republic of India) Rules, 2009” (hereinafter “2009 Rules”) was issued pursuant
to AIFTA (FTA entered between India and ASEAN member States). If, any goods
which falls in the purview of AIFTA and fulfilling “origin criteria” as set out in
the FTA, is imported in India, Customs Authorities, as per Notification No.
46/2011-Cus., dated the 1st June, 2011, at the time of importation, will ask the
importer for CO and some other documents as has been set out in 2009 Rules and
if shown by importer (information in the CO and other documents being to the
satisfaction of concerned Custom Officer), then, as per the Section 5 of the Cus-
toms Tariff Act, 1975 he (importer) will be allowed to avail the benefits of the
AIFTA [Refer my article - Unpuzzling the enigma of claiming exemption on importa-
tion of products under AIFTA, (January 16, 2020).
Certificate of Origin and Customs Act, 1962
Recently, Finance Act, 2020 has added Chapter VAA of Customs Act,
1962, which sets out “Administration of Rules of Origin under Trade Agreement”. In
this chapter Section 28DA is of particular importance as it sets out the procedure
for the importers for claiming preferential rate of duty under concerned FTA. As
this chapter has been added in response to increase in the offence like laundering
of money and tax evasion committed by importers, we see the procedure of
claiming preferential rate of duty under concerned FTA has become very strin-
gent vis-à-vis scrutinising the compliance of “origin criteria” under the con-
cerned FTA and inspecting the veracity of the Certificate of Origin. For the sake
of convenience, summary of Section 28DA has been discussed below :

EXCISE LAW TIMES  1st July 2020  39