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Customs - Case Laws
Showing 101 to 120 of 132 Records
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2013 (8) TMI 237
Difference in opinion – the issue was Whether as per Condition No.40(a) of the Notification No.21/2002-Cus (sl.no.230) MMRDA is Road Construction Corporation under the control of the State of Maharashtra or not – as there was difference of opinions between various High Courts – in the judgement of Mercedes Benz India Pvt. Ltd. vs. UOI (2010 (3) TMI 300 - BOMBAY HIGH COURT) and in the case of M/s. Gammon India Ltd. vs. CC, Mumbai(2011 (7) TMI 17 - SUPREME COURT OF INDIA) there were divergent views on the issue - The matter was referred to the President for constituting a Larger matter for deciding the issue.
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2013 (8) TMI 236
Confiscation of Goods – department found excess quantity of Aluminium Scrap on the first check basis in the consignment as against declared quantity by the assessee – the goods were confiscated by the department - Held that:- the orders of both the lower authorities cannot be faulted with and are upheld - the confiscation of such quantity by the lower authorities under the provisions of Section 111(m) is in accordance with the law - The excess quantity which was found in the consignment is of approximately 17 MTs of Aluminium Scrap as against the declared quantity - there was no reason for interference in such situation – It was also to be noted that when there was a confiscation u/s 125 - the consequences thereto as of imposition of redemption fine and penalties follow.
Bonafide belief – Held that:- The claim of the assessee entertaining a bonafide belief, needs little consideration, in as much as the appellant could have been guided by the pre-shipment certificate issued by the NQAQSR, who are authorised to issue said pre-shipment inspection certificate under the provisions of Foreign Trade Policy - the said certificate also indicates that there was a 100% examination of cargo - little leniency is required on the imposition of redemption fine and penalty – appeal decided with modifications and partly in favour of assessee.
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2013 (8) TMI 235
Valuation of imported goods - related parties - section 14 - Department was of the view that supplier and the respondents are related person and the relationship has influenced the transaction value - Appeal filed by revenue for setting aside the order for enhancing the assessable value – Held that:- mere holding of shares by one party with proportional nominee directors in the other company does not amount to a relationship to disqualify transactional value court relied upon Modi Senator (I) Pvt. Ltd. vs. CC (I&G), New Delhi- (2009 (3) TMI 808 - CESTAT, NEW DELHI ) - even before the amendment of Section 14 and for the period thereafter as per the definition of ‘related person' u/s 14 - there should be two way interest between the buyer and seller was insufficient as the statutory requirement of buyer and seller having no interest in the business of each other does not imply that neither buyer has interest in the business of the buyer – appeal decided against revenue.
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2013 (8) TMI 234
Mis-declaration of goods - Revenue contended that assesse failed to disclose source of procurement of Muriate of Potash exported by shipping bills - Held that:- Revenue was defrauded by the conduct of the assesse who failed to come out with clean hands to show that there was no mis-declaration, no illegal export, no DEPB claim was made fraudulently, goods were exported obtaining licence and there were procurement from known source and goods were not Muriate of Potash and such goods were not out of imports made for making illegal export to be enriched at the cost of Revenue – UOI v. Jain Shudh Vanaspati Ltd.[ 1996 (8) TMI 108 - SUPREME COURT OF INDIA ] - Fraud committed against Revenue void all judicial acts, ecclesiastical or temporal.
Limitation of time barred – Held that:- Adjudications do not suffer from time bar where fraud surfaces - CC. v. Candid Enterprises [2001 (3) TMI 101 - SUPREME COURT OF INDIA] – Lapse of time does not convert an illegitimate transaction to be otherwise and plea of time bar was not tenable.
Waiver of pre deposit – 40 lakhs were ordered to be submitted – upon such submission rest was waiver till the disposal – Decided against assesse.
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2013 (8) TMI 233
Fixation of Brand rate of Duty Drawback - Whether Commissioner (Appeals) failed to examine the letter/order of the Additional Commissioner wherein the descriptive analysis of all the relevant documents having been thoroughly verified/scrutinized had been provided – Held that:-Commissioner (Appeals) had therefore rightly allowed the fixation of duty drawback brand rate in the light of said C.B.E. & C. Circular subject to revenue safeguard as mentioned – assesse was entitled to All Industry Rate Drawback @ 1.1% under Heading No. 8418 as stands admitted by the original authority - the option of fixation of brand rate available to assesse in terms of Circular cannot be denied - M/s. Suksha International v. UOI [1989 (1) TMI 316 - SUPREME COURT ] had observed that interpretations of unduly restricting substantial export benefit which otherwise was due as per policy of Government should be avoided - For interpretation of the provisions of the Circular, Government was of view which was as per the observations of ITC Ltd. v. CCE [2004 (9) TMI 103 - SUPREME COURT OF INDIA] that simple and plain readings should be adhered to and that provision in the statute as clarified by C.B.E. & C. Circulars were to be religiously followed.
It appears that either full facts were not produced/available at the time before him or the respondent exporter was not interested in putting up the case in a legal and proper manner because neither the status of exports was on record nor the exporter appears to be willing to challenge this communication - It was very peculiar situation that department first denied drawback at AIR rate, then subsequently rejected the brand rate fixation application - C.B.E. & C. had categorically stated in the Circular that brand rate of drawback would also be admissible in such case – Decided against revenue.
Condonation of Delay - Government after due consideration of factual reasons of delay condones the same in exercise of power vested u/s 129DD - delay of 15 days happened due to filing appeal and thereafter realizing the mistake - the revision application had been filed - the delay involved was within the condonable limits of further 3 months.
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2013 (8) TMI 214
Valuation of goods - inquiry was made by the department to ascertain the actual value of the goods – they determined the transaction value on the basis of the wholesale market price in India - in case of import of pre-packaged commodities, the MRP at which the imported goods were to be sold was required to be declared on the goods, but the same had not been declared and hence the goods appeared to be liable for confiscation under Section 111(d) of Customs Act, 1962, besides being liable for confiscation under Section 111(m) for misdeclaration of description and value - held that:– order was set aside and the matter was remanded back to original authority - The quantum of penalty on the importer firm shall be in proportion to the value of the goods held to be liable for confiscation - No separate penalty on the partners would be required - goods were not liable for confiscation u/s 111(m) - there was no justification for rejecting the declared transaction value in respect of chandeliers lamps, ceiling lights, glass/spare parts, table lamps, down lamps, spot lights and the same has to be accepted and for the same reasons – the question of confiscation of the goods u/s 111(d) has to be decided only after giving a clear finding as to whether the goods imported were in pre-packaged form so as to attract the provisions of Note 5 (e) of General Note of the Foreign Trade Policy – decided in favour of assessee
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2013 (8) TMI 213
Valuation of Goods - whether charging of PMT as throughput charges from the appellant was required to be included in the value of the imported goods u/s 14 r.w the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - Held that:- The charges for transportation of the goods by barges from the mother ship at BFL to the Dharamtar Jetty cannot be added to the valuation of the imported goods for the purpose of levying customs duty - any amount collected by the revenue as duty on barge charges shall be refunded forthwith to the assessee with statutory interest from the date of payment to the date of refund - Similar view had been expressed by the court in CC Kandla vs. Indian Potash Limited (2006 (12) TMI 441 - CESTAT, AHMEDABAD ) - expenditure incurred by the importer if not a consideration between the buyer situated abroad and the importer - not required to be included in the assessable value.
Penalty – Held that:- The case goes in assessee’s favour - there was no question of imposing penalties and the same were set aside – decided in favour of assessee.
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2013 (8) TMI 211
Imposition of fine and penalty – confiscation of goods – stay application - whether the items presented for export can be considered to be prohibited – whether there was a misdeclaration or an attempt to export prohibited goods by the assessee justifying the imposition of redemption fine and penalty - Held that:- The confiscation was set aside and redemption fine and penalty are also consequently set aside - in the absence of any mis-declaration or deliberate attempt to export goods which are prohibited without having any ground for a belief that the same were not prohibited - imposition of fine and penalty cannot be sustained - even if the goods were prohibited the customs authorities as well as the appellants genuinely believed that the same was not prohibited – the opinions given by the DGFT and the NOC issued by the Forest Department also support the case of the appellant that there was no intention to export the prohibited goods and there was no mis-declaration – stay application allowed – decided in favour of assessee.
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2013 (8) TMI 210
Mis declaration of goods – assessee was claiming the benefit of Notification No.21/2002 on their import of steel coils - difference of opinion - matter referred to larger bench on the following issues:
1. Whether to qualify as ‘other alloy steel' minimum one element in the proportion prescribed in Chapter Note 1(f) of Chapter 72, ( in addition to steel), is essential as held by Member (Technical) in para 5.1.2 of the order,
or
2. Whether to qualify as ‘other alloy steel' not only one element is essential in proportion prescribed but if there are more than one element (in addition to steel) all should be in proportion prescribed in Chapter 1(f) of Chapter 72, are essential, as held by the Member (Judicial.)
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2013 (8) TMI 209
Adjudication of Advance Bill of Entry - Assesse filed Advance Bill for import of a new vehicle – Revenue was of the view that after examination of the goods no adjudication can be done on advance bill of entry only duty can be paid on it – Held that:- Commissioner was empowered to adjudicate the Advance Bill of Entry - The importers desirous of a veiling the above facility should submit application along with the advance Bill of Entries to the Import Department – Commissioner can assess the Advance Bill of Entry as prayed by the assesse in accordance with law - following the judgement of MOHAN MEAKIN LTD. Versus COMMISSIONER OF CENTRAL EXCISE, KOCHI [1999 (12) TMI 58 - SUPREME COURT OF INDIA] - Alongwith Advance Bill of Entry the importer/ CHA will produce copy of Bill of lading/ AWB and invoice issued by the supplier and other documents required for assessment – Decided in favor of assesse.
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2013 (8) TMI 166
Eligibility for refund – stay application - assesses were contesting the issue on merit as eligible for refund under SEZ – they had deposited the entire amount of duty liability confirmed by the lower authorities - but had not deposited the amount of interest – Held that:- Assesses had deposited entire amount of duty liability - the said amounts to be considered as enough deposit for hearing and disposing the appeal – stay petition for waiver of pre deposit of valance amount waived off – decided in favor of assessee.
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2013 (8) TMI 165
Refund of 4% of Special Additional Duty (ADC/SAD) - assessee filed refund in terms of Notification No.102/2007 – department rejected the claim on the ground that assessee failed to prove that they had not passed on the incidence of duty to the customers or any other person and also they have not furnished the required documents in relation to refund claims – Commissioner (Appeals) passed order in favour of assessee – revenue filed the appeal - Held that:- CA’s certificate produced by the appellant fulfills the requirements and is sufficient to come to the conclusion that appellants are eligible for the refund - the very purpose of requiring a certificate to be produced by a professional CA and insisting on the fact that the Chartered Accountant should be one who was responsible for auditing the companies accounts either statutorily was to ensure that the CA was familiar with the accounts of the company - their practices and also would be knowing and would be in a position to verify the accounts and such certificates shall be accepted – decided against revenue.
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2013 (8) TMI 164
Confiscation of goods – imposition of penalty and fine - Request was made by the appellant for allowing them to change the amount – but the department made the order for confiscation of the goods - Held that:- appellant themselves had informed the department vide their letter that value per piece in the Bill of Entry has been shown on the lower side by mistake – liability were imposed upon the appellants but the amount of fine and penalty was reduced – in the Bill of Entry value was not correctly declared by the importer attracting the violation of Section 111(m) of the Customs Act – appeal decided partly in favour of assessee.
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2013 (8) TMI 163
Refund - Bar of limitation - whether the date of actual payment of duty is relevant or the date of banks stamp on the TR 6 challan is relevant for the purpose of deciding the limitation – Held that:- refund having been filed beyond the period of limitation of one year is barred by limitation - As per the provisions of notification No. 6/2008 refund of SAD has to be made within a period of one year from the date of payment of duty - We cannot change the said relevant date prescribed in the notification and cannot step into shoes of legislation – in this case where the duty was deposited on 10.12.07 and 4.12.07 and the bank has wrongly stamped the challans with the date stamp of 14.12.07 and 19.12.07 - duties were actually paid on 10th and 4th December of 2007 – appeal decided against the assessee.
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2013 (8) TMI 162
Confiscation of goods - Department confiscated the goods u/s 111(d) – Held that:- The goods were confiscated by the Original Authority and were ordered to be re-exported on payment of fine and penalty - The goods have residual shelf life less than 60% and in terms of Rule 31 of Drugs & Cosmetics Rules - the import of any drug having less than 60% residual shelf life was prohibited – court upheld the order – appeal decided against the assesssee.
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2013 (8) TMI 161
CVD - Benefit of Area based exemption to the 100%EOU - determination of Additional Duty of Customs (CVD) - Extending benefits of Area base Central Excise notification to the petitioners may create disparity vis-ŕ-vis other manufacturers who are not 100% ‘EOU’, it may be seen that when the benefits are provided under Foreign Trade Policy to the 100% ‘EOU’, can bring raw material and capital goods without payment of Customs and excise duty– Held that:- Benefit granted under FTP, a 100% ‘EOU’/the petitioner unit is accountable for the earning of net foreign exchange (NFE) for the country unlike other manufacturers. Moreover, the petitioners are paying basic Customs duty under Section 12 of the Customs Act, 1962, whereas, other manufacturers while functioning in the State of H.P. though are claiming benefits of area base exemption but are not paying such Customs duty – Central Government intentionally provided the tax incentive benefit including 100% excise duty exemption to the special category State of Himachal Pradesh, as such, any disparity with other manufacturer of India, located in different parts, shall not be created.
Additional Duty of Customs (CVD), chargeable under Section 3 of the Customs Tariff Act, 1975 and applicability of exemption Notification No. 50/2003-C.E.- Held that:- Issue has already been settled by Hon’ble Supreme Court in Hyderabad Industries Ltd. [1999 (5) TMI 29 - SUPREME COURT OF INDIA]by following and affirming its earlier verdict in Thermax Pvt. Ltd.[ 1992 (8) TMI 156 - SUPREME COURT OF INDIA], wherein it has been held that section 3(1) of the Customs Tariff Act “Specifically mandates that the CVD will be equal to the Excise -Duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of Excise Duty that he would have been called upon to pay in that event.” - The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under sub-section (1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation is that the article is produced or manufactured in India. The second limb to the explanation deals with a situation where “a like article is not so produced or manufactured” - The use of word “so” implies that the production or manufacture referred to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced or manufactured in India - While calculating CVD it has to be assumed that the goods were manufactured in India and the applicable rate of duty to such manufactured goods has to be applied to the imported goods. The effective rate of excise duties for a unit located in the specified area mentioned in 50/2003-C.E. is Nil and it is this rate alone which can be applied for the purpose of calculating ‘CVD’ in terms of the observations of the Hon’ble Supreme Court.
Order dated 17-3-2011 passed by ‘DGEP’/i.e. respondent No. 3 is set aside and writ of mandamus is being issued directing the respondents to allow benefit of exemption Notification No. 50/2003-C.E., dated 10-6-2003 to be given to the petitioners and further direction is being issued not to demand differential excise duty from the petitioners consequent upon setting aside the order dated 17-3-2011 of ‘DGEP’ and all connecting proceedings initiated against the petitioners shall also stand set aside. As such, the petitioners are entitled to the benefit of exemption Notification No. 50/2003-C.E., dated 10-6-2003 and also entitled for making goods by way of DTA clearances from the petitioner unit in reference to the aforesaid exemption notification - Decided in favor of Assessee.
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2013 (8) TMI 134
Valuation - import of cars in SKD / CKD conditions - inclusion of costs towards transfer of technology and trademark licence - Investigation was taken up on the basis of intelligence assesses had not declared the value correctly and consequently evaded customs duty - the Commissioner ordered that 45 million USD charged as Technology Transfer is attributable to pre-importation activity and, therefore, this amount has to be added and included in the assessable value, applicable to each imported car kit - Agreements between the two companies fraudulent and fabricated - whether the payment of lump sum made to SKODA towards technological fees for manufacturing car kits calculated on the basis of USD per unit as per FIPB application and as per cost sheet recovered during the investigation was includable in the assessable value or not - clauses from (a) to (e) of Rule 9(1) are independent - just because the transaction value under Rule 4(1) is to be adjusted with the costs and services under Rule 9(1), cannot be said that Rule 9 is a residuary Rule - transaction value under Rule 4(1) is to be adjusted with the costs and services mentioned in any of the clauses (a) to (e) of Rule 9(1) depending upon the fact situation of each case. It is needless to mention that each of the clauses from (a) to (e) of Rule 9(1) is independent. Further, just because the transaction value under Rule 4(1) is required to be adjusted with the costs and services under Rule 9(1), it cannot be said that Rule 9 is a residuary Rule.
Technical Documentation - the Supply Agreement and the Technology Transfer and Trademark Licence Agreement are complementary to each other - both the Agreements had to be taken as indivisible and composite contract.
Lumpsum (Technological Fee) vis-ŕ-vis royalty – royalties will be addable to the value of the imported goods - only the lumpsum amount of USD 45 million paid towards technical documentation (technology transfer fee) which was different from royalty was addable to the assessable value of the goods - State Bank of India V/s. CC, Bombay –(2000 (1) TMI 177 - SUPREME COURT OF INDIA ).
Limitation - The show cause notice had demanded duty for the period from October, 2001 to July,2007 by invoking the extended period of limitation u/s28 (1) – There were clear suppression of fact attracting the extended period of limitation – the notice needed to be issued either within the normal period or within the extended period from the relevant date - CCE, Surat-I v/s. Neminath Fabrics Pvt. Ltd. ( 2010 (4) TMI 631 - GUJARAT HIGH COURT) - date of knowledge cannot be imported into the relevant date as prescribed by the Act.
Jurisdiction: - the show cause notice had been issued - the officers of the Directorate general of Central Excised Intelligence at various levels were also officers of Customs with all India jurisdiction vide Notification No. 27/2009-Cus - Further, they are also ‘proper officers' for the purposes of Section 28 in terms of Notification No. 44/2011.
Confiscation - this was a case of misdeclaration of value of the goods by suppressing the fact of payment of USD 45 million in the guise of technical documentation - the Commissioner had rightly held that the goods are liable to confiscation u/s 111(m) and imposed redemption fine in lieu of confiscation as the goods were not physically available at the time of adjudication.
Penalties - the short levy had arisen as a result of suppression of facts of payment of USD 45 million in the guise of technical documentation - the Commissioner had rightly imposed penalty of SAIPL u/d114A – penalties were reduced - the goods were not physically available at the time of adjudication - redemption fine imposed by the Commissioner was not imposable – decided partly in favour of assessee.
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2013 (8) TMI 133
Amendment in the Bill of Entry - assessee imported the goods – by mistake in the bill 6 items were mentioned instead of 5 - filed an application for amendment of Bill of entry in terms of provisions of Section 149 - application was rejected by the original adjudicating authority on the ground that the appellants had themselves made the declaration and the goods stand cleared as per the assessment done by the proper officer – Held that:- The appellant was entitled to make such amendment in the Bill of Entry - the declaration of proofing machine two times in the Bill of Entry is an obvious mistake committed by the CHA - It was only such type of mistake which are permitted to be amended in terms of section 149 of the Act - all the evidence relied upon by the importer are the documentary evidence which were available at the time of clearance of the goods – evidence lead to only one inevitable conclusion that only 5 machines were imported by the appellant – decided in favour of assessee.
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2013 (8) TMI 132
Reduction in redemption fine - old and used photocopier machines imported was imported without licence by bill of entry was low compared to the NIDB date for which that should be enhanced – assessee filed an appeal - The fines and penalties imposed by the original authorities in these cases of repeated offences were not unreasonable or arbitrary or whimsical considering the fact that the authorities under the law have a duty cast upon them to prevent illegal imports and effectively implement the Import Policy validly laid down by the Government and to curb undervaluation and mis declaration apart from preventing repeated offences – decided against assessee.
Reduced penalty – penalty on import without licence was reduced – Held that:- decided the lower appellate authority was totally unjustified in reducing the fines and penalties in these cases to very low levels - orders passed by the lower appellate authority were set aside as they relate to lowering of redemption fines and penalties and restore the orders passed by the original authorities – adjudication was modified only on penalty aspect and order of ld. Commissioner (Appeals) was upheld on valuation aspect setting aside his order on fine and penalty in both cases – decided in favour of revenue.
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2013 (8) TMI 131
Nature of entitlement – duty credit - export incentive under the scheme called the Target Plus Scheme (TPS) - Nexus with import - Whether a change to the duty credit entitlements announced by the FTP can be brought about without amending such policy and by issuing Circulars and Notifications or Forms – Held that:- credit can be used for import of any inputs, capital goods including spares, office equipments, professional equipment and office furniture. Such imports can be used not only by the exporter, but even by the supporting manufacturer. Obviously, office equipment, professional equipment and office furniture have no nexus with the exports, the question is about inputs. When the expression is “import of any inputs” whether it would mean only those inputs which have nexus with the nature of goods exported. That is not following from the scheme. When we read the later portion of this para dealing with import of agricultural products, we find that some items which are allowed to be imported are specifically mentioned. Again, when those items are mentioned, it is not necessary that they will have nexus with the exports made by a particular export houses. When we look the matter from this angle and even proceed on the basis that ‘broad nexus’ criteria used in Handbook of Procedures Vol. I for the period from 1-9-2004 to 31-3-2009, the word ‘broad’ prefixed with nexus, the word ‘nexus’ has to be assigned same meaning.
The nexus has to be maintained that ‘product group’, viz., the category of the products which is exported. If the import also falls in the same category/group, it would be allowable.
Imports under TPS may be carefully scrutinized with reference to the provisions of the FTP, Handbook of Procedures, the customs notifications and Board’s Circular referred to above so as to ensure that the laid down provisions regarding ‘inputs’, ‘broad nexus’ and ‘use’ and ‘supporting manufacturer(s)’ are complied with - FTP by itself does not indicate that the imported goods should constitute ‘inputs’ in the goods exported - Relying upon Atul Commodities Pvt. Ltd. v. Commissioner of Customs [2009 (2) TMI 18 - SUPREME COURT] and Narendra Udeshi v. Union of India [2002 (10) TMI 646 - BOMBAY HIGH COURT] – Decided against assesse.
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