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Showing 121 to 132 of 132 Records

• 2013 (8) TMI 101 - CESTAT CHENNAI
  

  Export obligation - Value Based Advance Licenses - import without payment of customs duty - Notification No.203/92-Cus - Amnesty Scheme - whether the appellant is to be punished by demanding a high amount for his default by adopting the method suggested by Revenue or by demanding minimum possible amount by adopting the method adopted by appellant. - confiscation of the goods under section 111(o) of Customs Act 1962 and penalty on the importer under section 112(a) and 114(a) of Customs Act, 1962. - Held that:- if the appellants had paid about Rs.5 lakhs more as on 31.1.97,their entire liability under the 14 licences could have been discharged but for the issue that interest was paid through RG-23A account rather than through cash. The wording of the amnesty scheme was not very explicit that interest could not be paid by reversal of credit. When the payments were reported to the jurisdictional officers they did not take any immediate objection to such payment but took objection almost after six months. Immediately the appellants responded by paying the amount in cash. In such factual matrix non-payment of interest through cash is not a ground to deny the benefit of the amnesty scheme. In fact such issue is not raised in the impugned order because it is seen that payments made in respect of 12 licenses have been accepted for qualifying for amnesty.

  Once the High Court has ordered that amnesty scheme is to be extended considering each licence on a case to case basis, it is for the appellant to appropriate the payments made by them towards the liability under each licence. The Hon. High Court has not ordered any particular order in which licenses have to be considered for eligibility for amnesty. There is no undue benefit that is being granted to the appellant by following the method suggested by the appellant. Such method is not against any of the conditions of the amnesty scheme or order of Hon. Madras High Court. We do not find any legal backing for the argument of Revenue that the licences have to be first arranged in the chronological order and then appropriations of amounts paid prior to 31-01-1997 are to be made.

  The date of the licence by itself may not decide chronology but the date of import of the goods may be more relevant. But it is not as if only one import was made against any particular licence. In such a complicated situation, the rationale adopted by Revenue of arranging the licences according to the date of the licence has no logical support not to talk of legal support. It only results in a much higher liability to the appellant for a small default of about Rs.5 lakhs. Such approach is not warranted in the facts and circumstances of the case. - Decided in favor of assessee.

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• 2013 (8) TMI 100 - KERALA HIGH COURT
  

  Import of boric acid - Whether by a condition in the import policy of the Government of India obtaining the registration under the Insecticides Act was necessary - Held that:- Condition in the import policy requiring the assesses to take out a registration under the Insecticides Act for applying for licence to import boric acid was arbitrary and unsustainable and liable to be quashed - Subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature subordinate legislation in the form of the condition in the export-import policy was clearly violative of Section 38 of the plenary legislation i.e; the Insecticides Act - A rule was not only required to be made in conformity with the provisions of the Act whereunder it was made - but the same must be in conformity with the provisions of any other Act - relied upon Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others {2006 (3) TMI 688 - SUPREME COURT}.

  Whether a condition for obtaining a licence to import of boric acid if such import was not for the purpose of using the same as an insecticide condition in the import policy is legally sustainable - If boric acid was imported for the purposes other than for use as an insecticide the authorities under the Insecticides Act were not legally obliged to entertain an application for registration - For valid imposition of such a condition on importers Section 38 should had been qualified by words like, “subject to provisions of the export-import policy”, “except otherwise provided for in any other law for the time being in force” - Or else an appropriate provision should be made in the Act or at least in the import policy making it obligatory on the authorities under the Insecticides Act to consider applications for registration of boric acid - which was not intended for use as an insecticide – Decided in favor of assessee.

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• 2013 (8) TMI 99 - GOVERNMENT OF INDIA
  

  Penalty u/s 116 –person-in-charge of conveyance - All the containers had been received empty – steamer agents could not provide a satisfactory explanation for short-landing and was accountable for the declared quantity of the cargo especially when the seals provided by him were used for sealing the containers - assesse contended that u/s 116 penalty can be imposed only on person-in-charge of the conveyance and not on steamer agent, that seals of containers were found intact and therefore no penalty can be imposed u/s116 - Held that:- As such steamer agent was liable to penal action u/s116 - Section 148 makes it clear that such agent shall be liable for fulfillment in respect of matter in question of all obligations imposed on such person in-charge and to penalties and confiscation which may be incurred in respect of that matter.

  Knowledge of empty containers – Held that:- It was not at all possible that master of the vessel did not know the fact of empty container loaded in the vessel.

  Mens- rea - Assesse contended that there was no mens rea on the part of person-in-charge – Held that:- Section 116 makes it clear that penalty was imposed for not unloading the goods which were loaded in vessel for importation into India - There was no requirement of proving mens rea on the part of person-in-charge of conveyance – relying upon M/s. ITC Ltd. v. CCE Delhi [2004 (9) TMI 103 - SUPREME COURT OF INDIA] – order upheld – Decided against assesse.

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• 2013 (8) TMI 70 - CALCUTTA HIGH COURT
  

  Conditions for granting bail - Whether the court was right in imposing conditions while granting the bail - athe petitioner was arrested by Customs Officer in purported exercising power conferred under Section 104 of the Customs Act, 1962 in connection with a consignment of export made by the said company - Held that:- The petitioner should be permitted to take back his passport from the concerned authority to go abroad strictly only for a month according to his requirement subject to the conditions - the State is within its domain to put restriction about freedom of movement but a balance has to be struck between ‘liberty’ and ‘justice’ – court heavily relied upon Maneka Gandhi vs. Union of India (1978 (1) TMI 161 - SUPREME COURT).

  On inquiry the counsel for the respondent could not give any positive and acceptable answer over the question “whether custody trial is needed in such type of case”- even the respondent cannot give any clear-cut probable time during which the trial may be concluded - the respondent sat idle - the rationality and proportionality of the prayer of the petitioner should be considered - deprivation of his personal life and liberty has to be taken care of – petition allowed in the favour of petitioner.

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• 2013 (8) TMI 69 - CESTAT AHMEDABAD
  

  Confiscation of goods – waiver of Penalties imposed – Held that:- Assesse had not made out prima facie case for complete waiver of penalties - assesses could not produce any documentary evidence to indicate that the rough diamonds seized correspond to the description and value given in the bills of entry under which the rough diamonds were imported – maintenance of stock register/account, the assesse could not explain as to how the stock of imported rough diamonds was maintained and how the same were disposed off – pre deposit of an amount Rs. 50,000 was ordered – on such submission rest of the duty was waived – decided partly in favor of assessee.

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• 2013 (8) TMI 68 - CESTAT MUMBAI
  

  Suspension of CHA license – Held that:- order deserves no merit and liable to be set aside - appellant had not even filed bill of entry - they had no role to play for clearance of the consignment wherein in the consignment of furniture some cigarettes were found – decided in favour of CHA.

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• 2013 (8) TMI 67 - CESTAT NEW DELHI
  

  Import of Hazardous Waste – e-waste - Datagraphic Display Tubes which are used in computer monitors. - confiscation of goods - Appellant challenged the notice issued for confiscation of the goods imported u/s 111(d) and for imposition of penalty - Department was of the view that the goods were e-waste whose import was restricted under Import Export Policy 2009-14 r.w Board's Circular No. 27/2011- Held that:- The goods had been imported without permission from the MOEF the import would have to be treated contrary to the restrictions - it would be liable for confiscation u/s 111(d) - goods imported were electronic assemblies for direct re-use - they would be covered by Serial No. 1110 of Part B of the Schedule-III to the Hazardous Waste Rules, 2008 – they would require prior permissible from MOEF - no permission of the Ministry of Environment and Forests (MOEF) had been obtained for import for the purpose of re-use the same would be liable for confiscation - appeal decided against assessee.

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• 2013 (8) TMI 34 - CESTAT AHMEDABAD
  

  Waiver of pre deposit - Misdeclaration of goods- duty liability on Tuna Fishing Hooks - imported along with vessel which was brought in for ship breaking by the assesse – Revenue were of the view that the assesse had not declared the fishing hooks along with the vessel - Held that:- The deposit as enough security to hear and dispose the appeals - the issue involved in these cases was debatable one – Assesses had stated that the amounts were still lying with the Department - Since 50% of the duty liability and 50% of the penalty imposed on the main appellant stand deposited – waiver of pre deposit allowed – stay granted.

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• 2013 (8) TMI 33 - MADRAS HIGH COURT
  

  Export duty - Movement of goods from DTA to SEZ unit - Validity of circular levying duty - assessee filed the petition against the circular levying of duty of customs on the goods moved from various places in India situated outside the SEZ into the SEZ in India – Held that:- There was no movement of goods from India to a place outside India thus export duty cannot be levied - it would not be open to the revenue to levy duties of customs on such goods by way of Notifications or Circulars - goods which are taken out of India to a place outside India the levy u/s 12 was applicable - Notification No. 66/2008-Customs states that the levy of duties of customs being export duty would be applicable only in respect of goods which are exported outside India - there was no provision in the SEZ Act to levy duties of customs – court relied upon Essar Steel Limited v. Union of India (2009 (11) TMI 141 - GUJARAT HIGH COURT ) and Commissioner of C.Ex., Bangalore v. Biocon Ltd. (2011 (2) TMI 460 - KARNATAKA HIGH COURT).

  SEZ Act a separate Code - it would not be open to the respondents to levy duties of customs on goods moved from Domestic Tariff Areas into Special Economic Zones, as per the definition found in Section 2 - it would not be proper on the part of the department to levy duties of customs on goods supplied from the Domestic Tariff Areas to the units situated in the Special Economic Zones - If levy of duties of customs are to be made applicable to such goods it could only be by way of appropriate amendments introduced in the Customs Act, 1962, as well as in the SEZ Act – petition decided in favour of assessee.

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• 2013 (8) TMI 32 - GUJARAT HIGH COURT
  

  Typographical error corrected in the judgement of NOVOPAN INDIA LTD. Versus COLLECTOR OF C. EX. AND CUSTOMS, HYDERABAD [1994 (9) TMI 67 - SUPREME COURT OF INDIA] - matter was related to classification of goods and interpretation of the statute.

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• 2013 (8) TMI 8 - SUPREME COURT
  

  Validity of detention order - Third member decision - whether a detention order passed under the provisions of the COFEPOSA Act could be challenged at the pre-execution stage only on any of the five exceptions carved out by the Court in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia (1990 (12) TMI 216 - SUPREME COURT OF INDIA) or whether such challenge could be maintained on other grounds as well – Held that:- those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law.

  The question whether the five circumstances specified in Alka Subhash Gadia case (1990 (12) TMI 216 - SUPREME COURT OF INDIA ) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive. Dropti Devi Vs. Union of India [2012 (7) TMI 202 - SUPREME COURT OF INDIA] - But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law. - All petitions dismissed.

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• 2013 (8) TMI 7 - GOVERNMENT OF INDIA
  

  Claim for duty drawback – assessee filed a claim of duty drawback for export goods - The show cause notice was issued to the assessee for confiscation of 5268 cartons exported for which the drawback claimed - penal action u/s 114AA on the assessee - penal action u/s 114(iii) on the exporters and rejection of the duty drawback claim - Held that:- Commissioner (Appeals) had rightly held drawback claim admissible at lower rate on Customs portion only - penalties u/s 114(iii) of Customs Act on the exporter - The penalty imposed on exporter u/s 114AA was set aside as the imposition of penalty u/s 114(iii) will meet the ends of justice - penalty was already imposed on exporting company and therefore the penalty imposed on u/s 114(iii) was set aside.

  CENVAT credit - availing Cenvat credit of some inputs and input services used in the manufacture of export goods was not denied by the exporter - The reversal of said Cenvat credit cannot make him entitled for drawback claim at higher rate since the condition for claiming higher rate of drawback were not satisfied at the time of export – availment of Cenvat credit facility by exporter manufacturer is not denied by exporter and therefore the charge of mis-declaration of statement on the part of all noticees in relation to claim of drawback with an intention to avail drawback at higher rate stands proved. Commissioner (Appeals) has erred in setting aside the redemption fine and penalties - the redemption fine and penalties imposed by adjudicating authority appears harsh and their reduction is warranted – order modified.

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