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2014 (2) TMI 1015 - CESTAT NEW DELHIChina border trade between the local residents living either side of the border - Import of raw silk from China - Exemption under Notification No. 38/96-Cus. dated 23-7-1996 - Commissioner has primarily held against the appellants on the ground that Shri Krishna Singh Garbyal is staying at a place about 80 Kms. away from the border, the import made by him cannot be held to be border trade - violation of the provisions of MoU - Confiscation of goods - Imposition of penalty - Held that:- benefit of notification is available in respect of imports made from China through Gunji route and there is no restriction of the actual user of the goods so imported. Having held that importer has not violated any other condition of the notification - there is no definition of the border trade available anywhere or the distance from the border within which the importer should have been residing. In the absence of the same, the findings of the lower authorities that Shri Krishna Singh Garbyal was not a local resident, cannot be appreciated. Admittedly, the bill of entry was filed by M/s. Krishna Enterprises and as such he has to be held as importer of raw silk in question. As per domicile certificate produced before the Commissioner, he has been shown a person living along the Indo-China border. Import was made by a person living along the Indo-China border and as such can be safely concluded as a border trade. Further, as per the authority for the advance rulings, there is no restriction on the sale of the goods after import. As such, even if Revenue’s allegation as regards the sale of the raw silk by M/s. Krishna Enterprises to M/s. Elegant Industries is accepted to be correct, the same are very much in the legal frame work of law. Levy of anti-dumping duty - Revenue’s allegation of misdeclaration of the Mulberry Raw Silk - Held that:- even if part of raw silk imported by the appellants is held to be of grade 2A, even then no anti-dumping duty is leviable, inasmuch as the Notification No. 106/2003, dated 10-7-2003 levies anti-dumping duty on Mulberry Raw Silk of grade 2A and below, if the landed value of consignment is less than US$ 27.97 per Kg. Admittedly, in the present case the landed value of consignment is US$ 28.18 per Kg. In fact, we find that Commissioner in his impugned order has not confirmed anti-dumping duty against the appellants. In these circumstances, the charge of misdeclaration against the appellants cannot be upheld so as to confiscate the goods, in terms of provisions of Section 111(m) of the Customs Act - Decided in favour of assessee.
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