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Customs - Case Laws
Showing 1 to 20 of 1296 Records
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2013 (12) TMI 1700
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... ... ..... nt Treasury, also give rise to Hawala transactions. Therefore in my views such cases have to be dealt with more seriously by imposition of harsher and deterrent penalty to discourage recurrence of such fraud. In this case the allegation of inflating the FOB value by a factor about 426 stands upheld by both the Members. While the duty unvalued on the goods is negligible, the DEPB benefit claimed is ₹ 11,26,137/- which is outsight plunder of Government Treasury. Therefore this case merits deterrent penalty. In view of this, I agree with the view of the Hon’ble Member (Technical). The point of difference stands answered accordingly. (Order pronounced on 19-12-2013) Sd/- (Rakesh Kumar) Member (Technical) FINAL ORDER 29. In view of the majority order, the penalty of ₹ 50,00,000/- (Rupees Fifty lakhs only) is imposed on the appellant. The appeal is disposed of in the above terms. Sd/- (Manmohan Singh) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial)
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2013 (12) TMI 1636
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... ... ..... der-in-original, dated 19 February 2013 upon the petitioners. In these circumstances, we set aside the impugned order, dated 19 February 2013 with directions to the Adjudicating Authority respondent No. 3 to give an opportunity of hearing to the petitioners and thereafter decide all the issues raised in the show cause notice, dated 22 December 2010 in accordance with law. 7. In order to obviate any difficulty about the service of notice by the petitioners, it is directed that the petitioners shall appear before the respondent No. 3 on 20 December 2013 at 11.00 a.m. for hearing of the notice. Adjudication proceedings shall be expedited and completed preferably by 31 January 2014 . 8. It is clarified that at this stage we have not gone into the merits of the contentions of the parties. 9. The writ petition is accordingly disposed of in the above terms. 10. Parties to act on a copy of this order duly authenticated by the registry of this Court.
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2013 (12) TMI 1607
Amendment in shipping bill - Refund claim denied on the ground that the shipping bill does not state about duty drawback claim - Held that: - the amendment in shipping bill should have been allowed and is accordingly being allowed by this Tribunal.
Reliance placed in the case of Man Industries (India) Ltd. v. Commissioner of Customs (EP) [2006 (3) TMI 513 - CESTAT, MUMBAI], wherein it was held that the request for conversion of shipping bill was made in terms of the statutory rights available to the appellant under Section 149 of the Customs Act, 1962. The said section entitles the proper officer of Customs to direct amendment of any document, after it has been presented in Custom House.
Appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1606
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... ... ..... rough the provisions of Notification No. 13/2001. The said notification grants exemption from SAD on goods imported subject to the condition that the goods are exempted from whole of the customs duty leviable thereon under the First Schedule, and the whole of the additional duty of customs leviable thereon under sub-section (1) of Section 3 of the Customs Tariff Act. In other words, only when the goods are exempted from both the BCD and CVD, the benefit of exemption would apply in respect of SAD. In the present case, the appellant claimed the benefit of Notification No. 94/96. The said notification grants exemption from Basic Customs Duty and does not exempt from CVD. It is also on record that the appellant has paid the CVD at the time of importation. In view of the above, the appellant is not eligible for benefit of exemption under Notification No. 19/2001-Cus. Accordingly, we do not find any merit in this appeal and the same is dismissed. (Dictated and pronounced in Court)
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2013 (12) TMI 1565
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... ... ..... ion and demurrage charges and in the event, such waiver is not allowed, the respondent authorities shall pay the detention and demurrage charges of the containers as the respondent till then did not allow the respondent to re-export goods in terms of the earlier order. If an interlocutory order has not been assailed and there was a direction passed have not been complied with the Court certainly can grant the financial relief against the defaulting party. In the present case I am afraid that the said case cannot be applicable. The aforesaid two reports cannot be of any assistance and help to the petitioner inasmuch as the detention and/or demurrage charges has not been levied and/or asked for and this Court, therefore, does not intend to make any observations thereupon. The writ petition is, thus, disposed of. There shall be no order as to costs. Urgent xerox certified photocopies of this order be supplied, if applied for, to the parties subject to the requisite formalities.
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2013 (12) TMI 1532
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... ... ..... for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application.” 17. Most recently the Supreme Court in Swami Devi Dayal Hospital & Dental College v. U.O.I. - (2013) 10 Scale 608, re-iterated the legal position that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. Conclusion 18. In the result, the individual orders dated 10 August 2012 are quashed and the matter is remitted to the second respondent for fresh consideration. The second respondent is directed to issue notice to M/s. ITC Limited, Chennai and pass appropriate orders on merits and as per law. 19. In the upshot, I allow the writ petitions. No costs.
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2013 (12) TMI 1520
Benefit of concessional rate of duty in terms of Notification dated 27th April 1994 bearing No.117/94-CUS - Confiscation of goods - non-appearance of any endorsement on the licences.
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2013 (12) TMI 1501
Refund of SAD - N/N. 102/2007-Cus., dated 14-9-2007 - rejection on the ground of time bar - Held that: - there is reasonable cause for filing the refund claim on 1-12-2008 and the delay is properly explained, which is only of 3 days beyond control, and the same is hereby condoned. The matter is being remanded to the adjudicating authority to consider the claim of refund on merits - appeal allowed by way of remand.
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2013 (12) TMI 1497
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... ... ..... role in the transactions undertaken by M/s. S.S. Enterprises. Neither, M/s. S.S. Enterprises nor other exporters have implicated the appellants in the fraudulent export transactions undertaken by them. The only evidence relied upon by the Revenue is the bank statement which shows financial transactions between the appellant and S.S. Enterprises. Merely because the appellants had financial transactions with the exporter, it does not mean that the appellant was involved in aiding or abetting over-invoicing of exports made by M/s. S.S. Enterprises. Hence, the presumption against the appellants in the impugned order with respect to their involvement is without sufficient basis. Therefore, we hold that the appellants have made out a strong case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of the penalties adjudged against the appellants and stay recovery thereof during the pendency of the appeals. (Operative part of the order pronounced in Court)
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2013 (12) TMI 1494
Waiver of pre-deposit - Refund claim - finalization of provisional assessment - amendment in Section 14 of the Customs Act, 1962 for the determination of export duty - Circular dated 10-11-2008 - Held that:- Undisputedly, the relevant provision of Section 14 had been amended with effect from 11-5-2007 adopting the concept of ‘transaction value’ applicable to the goods meant for both export and import. Also, it is not in dispute that the Board has issued a Circular on 10-11-2008 clarifying certain aspects of Section 14 of the Customs Act, 1962, after introduction of duty on export of steels.
The method of assessment adopted by the Paradeep Commissionerate, taking the FOB price not as cum-duty price but as assessable value, has not been in accordance with the said Circular - waiver of pre-deposit allowed - petition allowed.
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2013 (12) TMI 1482
Imposition of penalty - Whether the CESTAT, Bangalore was correct to set aside the penalty imposed on the party - Held that:- In order to impose penalty, there must be an order of confiscation. Learned Tribunal has correctly held so. Accordingly we dismiss the appeal, as we do not find any element of law involved to admit the appeal - Decided against Revenue.
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2013 (12) TMI 1481
Confiscation - Import of hazardous chemicals - Held that:- Tribunal, on appreciating the facts has found that the provision of Section 111(d) of the Customs Act, 1962 read with Rule 3(2) and 3(3) of Foreign Trade (Development and Regulation) Act, 1992, has no manner of application. - Therefore, the alleged admission cannot be accepted to change the law. Hence, there is no element of law involved in the appeal. - Decided against Revenue.
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2013 (12) TMI 1466
Recover of already sanctioned drawback - failure to submit the Bank realisation certificate in prescribed format as a proof of realisation of export sale proceeds - Held that:- Despite prolonged litigation applicant has not produced the documentary evidence for realisation of export sale proceeds in the prescribed format of Bank realisation Certificate and still insisting that nowhere said format is prescribed and documentary evidence submitted by them may be accepted. - in the C.B.E. & C. Circular dated 2-2-2009, a system for in house monitoring mechanism to monitor the realisation of such proceeds of exports made under drawback scheme was devised. It nowhere stated that Bank Realisation Certificate is not to be submitted as proof of realisation of export sale proceeds. - DGFT has prescribed Bank Realisation Certificate for all exports under drawback scheme in format Appendix 22A (Form I). The said format is amended vide DGFT Public Notice No. 9 (RE : 2010) 09-14, dated 7-9-2010. In said Bank Realisation Certificate details like Invoice No., SB No., Bill No., Bill amount, date of realisation of export proceeds, etc., are required to be mentioned. There is no relaxation from submission of BRC in said format. Applicant had sufficient opportunity to submit the BRC in prescribed format but they failed to fulfil their statutory obligation. Therefore, the order for recovery of drawback claim cannot be faulted with. - Decided against Assessee.
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2013 (12) TMI 1465
Penalty u/s 116 - Shortage of goods - Held that:- Provision of Section 116 makes it clear that penalty is imposed for not unloading the goods which were loaded in vessel for importation into India. There is no requirement of proving mens rea on the part of person-in-charge of conveyance. In this case, the short landing or non-landing of goods is admissible by the applicant. As such penalty is imposable under Section 116 - 0.5% losses due to natural causes like moisture are required to be taken into account while working out actual short landed quantity. As such, after deducting 27 MT (0.5%) from 99 MT, the actual short landed quantity is 72 MTs. The proportionate duty involved on 72 MT of said cargo is ₹ 3,47,879 - Applicant is liable to penal action under Section 116 of Customs Act, 1962 as held by lower authorities taking into account the short landed quantity of 72 MT of cargo involving duty of ₹ 3,47,879/-. Keeping in view the overall circumstances of the case, the penalty imposed is quite harsh and should be reduced. As such Government reduces the penalty to ₹ 3,47,879/-. - Decided partly in favour of assessee.
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2013 (12) TMI 1464
Penalty u/s 116 - short landing quantity - Held that:- Section 30 stipulates delivery of import manifest or import report with true declaration therein. Further Import Manifest (Vessel) Regulations, 1971 provides the nature, condition and position (including status) to be truly declared as per respective declaration form. It is therefore quite clear that “Manifest” is to be considered a basic legal document and the declarations made therein are to be taken as statutory declarations for the purpose of further action under the relevant provisions of Customs Act, 1962. Similarly, Chapter V of the Act provides for levy and assessment of Customs duties and Section 13 thereof when read with provisions of Bill of Entry (Form) Regulations, 1976 the legality of the duty levied in this case can be clearly understood. Further for levy/calculation of impugned penalty, the provisions of Section 116 of the Customs Act, 1962 unambiguously stipulates the levy of penalty not exceeding twice the amount of duty.
Vessel sailed from Port of Ruwais Abudhabhi on 3-6-2012 after loading cargo of 36749.322 MT of BYCS in bulk for deliver at Chennai and Vizag Ports. 22000 MT cargo was discharged at Chennai Port in respect of BL No. 1 & 2. The said vessel arrived at Vizag on 24-6-2012 and discharged cargo of 14539 MT in respect of BL No. 3, 4, 5 against the quantity of 14749.322 MT. Applicant has claimed that 0.5% tolerance limit should be worked out on total quantity of 36749.322 MT as 183.75 MT which should be taken into account for arriving at the actual shortlanded quantity. In this regard, it is noted that the vessel has discharged 20000 MT cargo at Chennai port and balance cargo of 14539 MT at Vizag port. This fact is not rebutted by the department. The tolerance limit has to be applied with reference to total bulk cargo of BYCS which was loaded in the vessel. The losses occurred with reference to quantity of 20000 MT discharged at Chennai cannot be attributed only to the quantity of cargo discharged at Vizag.
Losses of 0.5% of total cargo loaded in the vessel i.e. 36749.322 MT equal to 183.75 MT is to be considered as genuine losses due to natural causes and as per general practice the said quantity of 183.75 MT is not to be taken as shortlanded quantity. As such actual shortlanded quantity is 210.322 MT - 183.75 MT = 26.572 MT of BYCS on which proportionate custom duty involved is ₹ 66,094 - applicant is liable to penal action under Section 116 of Customs Act, 1962 as held by lower authorities. Keeping in view the overall circumstances of the case, the penalty imposed is quite harsh and should be reduced - Decided partly in favour of assessee.
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2013 (12) TMI 1459
Seizure of foreign currency and coins - Smuggling of currency - Confiscation - Commissioner set aside confiscation order - Held that:- In the matter of illegal import of the currency the only evidence relied upon by Revenue is the statement of the appellant. This statement does not state that the goods were smuggled into India by the appellant. The statement is about the action of persons who were brought to him by brokers and hence not known to him. Such statements about acts of persons not known to the person making the statement cannot be admitted as evidence. The seizure is not anywhere near a customs barrier. So there is no circumstantial evidence of smuggling of currency into India. - So the initial burden to prove that the goods were smuggled was on Revenue having regard to provisions under regulation 6 in Foreign Exchange Management (Export and Import of Currency) Regulations, 2000. So the finding of the Commissioner (Appeals) that illegal import of the goods in question is not proved cannot be faulted. - So the confiscation of the goods under Section 111(d) and 113(d) of the Customs Act is not maintainable in such circumstances as ordered by the Calcutta High Court in the case of Amit Kumar Saha (2003 (10) TMI 67 - HIGH COURT AT CALCUTTA).
An officer empowered to investigate a matter can definitely take assistance of subordinate officers but substantive power of seizure and recording of statement cannot be delegated in the guise of taking help. Such actions cannot have legal validity. So a seizure made by a Superintendent for enforcing prohibitions of FEMA cannot be valid. So is the case with statements recorded. Further there is a procedure laid down in Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. Such procedure was not followed for adjudication proceeding either. - Decided against Revenue.
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2013 (12) TMI 1458
Seizure of goods - Non production of bills - Held that:- Commissioner (Appeals) has given a detailed findings while allowing the appeal. He has observed that as per version of the appellant, he purchased the said goods from Chennai and the packages came from Chennai is not in doubt. Being the recipient of goods, the ownership of the said goods rest with the respondent. It is findings of the ld. Commissioner (Appeals) that the goods are not notified under Section 123 and therefore, it was incumbent upon the Revenue officials to prove beyond doubt that the goods procured were smuggled one. It is thus not necessary for the appellant to produce copies of bills of entry under which goods were imported in India. Commissioner (Appeals) observed it is the submission of the applicant that he purchased the impugned goods from Chennai and this fact is not disputed. Department also could not prove that the said goods were smuggled. Accordingly I do not find any inconformity in the order of the Commissioner (Appeals) - Decided against Revenue.
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2013 (12) TMI 1457
Denial of refund claim - order of assessment not challenged - Held that:- Though the appellant had wrongly declared the currency as US $ in the Bill of Entry, whereas in the import invoice the currency is declared as Singapore $. In customs matters, the assessment is done by the Appraising Officer. Therefore, it is an error committed by the Appraising Officer in not taking the correct currency, even though the appellant misdeclared the currency as US $ in the Bill of Entry. However, this mistake should have been noticed and corrected by the Assessing Officer himself. There is no dispute either about the classification of the goods or about the rate of duty. Thus, it is not a case which comes under the category of ‘assessment required to be challenged’. It is an error committed apparently on face of the record. Thus, there is no ground for rejecting the refund claim on account of non-challenging the order of assessment. - Matter remanded back - Decided in favour of assessee.
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2013 (12) TMI 1456
Misdeclaration of goods - Whether in the facts and circumstances of the case, the provisions of Section 28(1A) of the Customs Act, 1962 are applicable or not - Difference of opinion - Majority order - Held that:- Appellants are not disputing the fact that the goods were misdeclared by them in terms of description as well as in value. Section 111(m) of the Customs Act provides that the goods are liable for confiscation in case there is a misdeclaration by the importer. Once the goods are held to be liable for confiscation, the adjudicating authority is empowered to give option to the importer to redeem the goods under Section 125(1) of the Customs Act and the importer is also liable for penalty under Section 112(a) of the Act. The ratio of the decision in the case of Sonam Clock Pvt. Ltd. (supra) is not applicable on the facts of the present case, as the issue in the case of Sonam Clock Pvt. Ltd. was demand made under Section 11A of the Central Excise Act. There are no parallel provisions under the Central Excise Act as Section 111(m) of the Customs Act. - present case does not cover under the provisions of Section 28 of the Customs Act - Decided against assessee.
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2013 (12) TMI 1404
Cross examination of noticee - Held that:- It is for the Commissioner of Customs (Import) to decide whether to grant cross examination of the persons asked for by the petitioner depending upon the facts and evidence arising for consideration in the case - if an order adverse to the petitioner is passed in the adjudication proceedings, it will be open to the petitioner to raise all available contentions including the fact that the petitioner had made the aforesaid applications dated 21 May 2013 and 26 September 2013 for cross examination, in case the applications are not granted.
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