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Customs - Case Laws
Showing 41 to 60 of 132 Records
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2013 (8) TMI 657
Undervaluation of Imported Goods - Duty Demand -Violation of Principles of Natural Justice - Opportunity Given to the assesses - The assesses raised ground of violation of natural justice - Held that:- The record enables to appreciate the total careless attitude of the appeal which was not vigilant to pursue remedy before the Tribunal even in second round of litigation interest of Revenue compelled to dismiss the stay applications Assesses were directed to deposit all the amounts demanded by adjudication order within 60 days of the receipt of the order - The assesse did not cooperate with the adjudicating authority and no reply to the show cause notice was filed - Several opportunities were granted but the assesses showered a defined attitude to law - Decided against assesses.
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2013 (8) TMI 656
Valuation of Invoices - invoices were undervalued the shipment with an intent to evade Customs duty department issued show cause notice for demand of duty and confiscation of the goods with an option to redeem the goods on payment of redemption fine - Held that:- The invoices admitted by the assessee to be undervalued with an intent to evade payment of duty the orders had not solely referred to the E-mail invoice - during the adjudication proceedings had been rightly held to be an afterthought and rightly rejected by the lower authorities in as much as no correspondence was exchanged between the appellant and supplier or any other evidence stand placed on record to substantiate the plea order of the Commissioner (Appeals) to be upheld decided against the assessee.
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2013 (8) TMI 655
Fraudulent intent - non-Basmati rice was exported in the guise of Basmati Rice department confiscated the basmati rice and also confiscated that non-basmati rice as these were used for concealing the non-basmati rice - Redemption fine and penalty was imposed Held that:- There was fraudulent intent to defraud Government revenue - Attempt had been made to export non-basmati rice in the guise of basmati rice - This was fit case for confiscation, imposition of redemption fine and imposition of penalty - Commissioner (A) already reduced redemption fine - No further interference required on this aspect as already excessive benefit has been given by commissioner (Appeal).
stay application - imposition of penalty - considering attempts of illegal exports appropriate penalty had been imposed - no case for reduction stay application and appeal decided against the assessee
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2013 (8) TMI 654
Excess duty drawback allegation of overvaluation - claim of DEPB and Draw back - Confiscation of goods u/s 113 Redemption fine u/s 125(1) Held that:- Assesse would be eligible for the duty drawback - The version of accountant as to sale of fabric to the assesse transportation to the destination of assesse and payment by account payee cheque of the sales consideration of fabric remained un-discarded.
Valuation of trousers - It was not possible to doubt manufacturing of the Trouser It was stated by the said deponent that they use superior quality of raw material in manufacture of export material failed to be discredited by Revenue. Even his version that final destination of export as Dubai appearing in ARE-1 return remained in fact without being impeached by Revenue. Further the market enquiry was not done with any manufacturer of trouser, That was done with traders without demonstrating whether they have at any time dealt with the goods of the appellant and whether they had any experience as manufacturer. - Decided in favor of assesse.
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2013 (8) TMI 653
Refund claim - Assesse had imported bales of Scoured New Zealand Wool -The goods were assessed to duty by the Customs Department and the Assesse cleared the goods on payment of Additional Customs Duty Assesse filed a Refund Claim on the ground that the imported goods were exempt from payment of Additional Customs Duty in terms of exemption Notification No.20/2006-Cus - Held that:- Order passed by the Commissioner (Appeals) to be sustained relying upon CCE, Kanpur vs. Flock (India) Pvt. Ltd.[ 2000 (8) TMI 88 - SUPREME COURT OF INDIA ] - in absence of an appeal challenging the assessment order, no refund application is maintainable for excess amount of duty, if any, paid. It is also observed that if an assessee fails to challenge an order of assessment issued by proper authorities, but resorts to file a refund claim for relief, then such approach would disturb the very scheme of the statute and would create uncertainty in the process of levy and collection of duty Decided against assesse.
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2013 (8) TMI 652
Non-declaration of Goods Penalty on the master of the vessel on account of non-declaration of 700 MT of cement, two Dozer Caterpillar and one motor bike in the IGM - Difference of opinion - majority order - Held that:- Non-declaration was not on account of any mala fide on the part of the captain - To err is human and as such mistake on the part of the captain can be on account mis-understanding of law and be of procedural nature without any intention to evade duty bona fide and inadvertent mistake should not be met with imposition of penalty which had inherent built of mala fide relying upon ESSAR OIL LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI [2002 (2) TMI 542 - CEGAT, MUMBAI].
In the absence of any mala fide imposition of penalty on steamer agent u/s 112 was not called for - It was trite law that for attracting penalty knowledge of the offended had to be brought out - the captain could be under a bona fide belief that the above items being part and parcel of the vessel on account of the Boards Circular were not required to be declared separately - such items were already a part of MOA and could not had escaped the attention of the AO Penalty set aside Decided in favor of assesse.
Dissenting Judgement - Member (Technical) was not in consonance with the opinion of the Member (Judicial) He delivered separate Judgement as to against the assesse the Third Member was into the favor of assesse.
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2013 (8) TMI 651
100% EOU - Export obligations - Rate of duty on de-bonding - Rate of depreciation of capital goods on debonding - Benefit of Notification No. 13/81 and Notification No. 123/81 - Whether in respect of the imported capital goods, raw materials and consumables which were, admittedly, used for manufacture of the goods for export the assesse were eligible for duty exemption under Notification No. 13/81-Cus. dated 9-2-1981 and similarly in respect of indigenously procured capital goods, raw materials and consumables which were used for manufacture of export goods, the assesse were eligible for Central Excise Duty exemption under Notification No. 123/81-C.E. - Held that:- The assesse had failed to achieve the export target and failed to achieve the required value addition and thereby have failed to fulfil the condition of the exemption notification, they were not eligible for duty exemption under the notification.
Imported raw materials and consumables acquired free of customs duty under Notification No. 13/81-Cus. and indigenous raw material and consumables acquired free of excise duty under Notification No. 123/81-C.E. were concerned, the assesse would not be eligible for duty exemption and the duty forgone in respect of these goods has been correctly demanded following EAGLE FLASK INDUSTRIES LIMITED Versus COMMISSIONER OF C. EX., PUNE [2004 (9) TMI 102 - SUPREME COURT OF INDIA] and State of Jharkhand v. Ambay Cements [2004 (11) TMI 319 - SUPREME COURT OF INDIA ] - if an exemption was available on complying with certain conditions, the conditions have to be strictly complied with Decided against assesse.
Rate of Duty - Whether the duty chargeable in respect of the unused raw materials and consumables and used capital goods would be at the rate in force on the date of payment of duty or at the rate in force on the date of debonding order or the rate in force at the time of import - Held that:- The warehousing period expired on 30th May, 2000 the duty liability on the goods at the time of debonding would have to be discharged on the basis of the rate of duty in force as on 30th May, 2000 - The rate of duty applicable on the goods would be the rate in force on the date of expiry of the warehousing period, irrespective of the date on which the goods were actually cleared from the bond - relying upon Kesoram Rayon v. CC, Calcutta [1996 (8) TMI 109 - SUPREME COURT OF INDIA ] and M/s. SBEC Sugar Limited & Another v. Union of India [2011 (2) TMI 227 - SUPREME COURT OF INDIA ] Decided against the assesse.
Eligibility for Depreciation - Whether in respect of clearance into DTA of capital goods, which admittedly had been used, the duty would be chargeable after permitting depreciation as on the date of debonding order or after giving depreciation as on the date of payment of duty - Held that:- There was no merit in the assessess plea for 100% depreciation for which there was no provision - In terms of Boards Circular No. 43/98-Cus. prescribing the rate of depreciation, the same was to be permitted at the rate of 4% per quarter for first year, 3% per quarter for 2nd and 3rd year and 2.5% per quarter for subsequent years, subject to maximum depreciation of 90% - The Commissioner in had permitted 90% depreciation - The provisions of condition No. 5 of the Notification No. 13/81-Cus. have to be read with the Boards Circulars issued from time to time fixing the quantum of depreciation Decided against assesse.
Confiscation of Goods u/s 111(o) and under Rule 210 of Central Excise Rules, 1944 Penalty u/s 112(a) and under Rule 210 of Central Excise Rules, 1944 Whether the capital goods and consumables imported by availing duty exemption under Notification No. 13/81-Cus. were liable for confiscation u/s 111(o) for violation of post-import conditions and on this count whether the assesse would be liable for penalty u/s 112(a) and also whether the indigenous excisable goods procured free of duty under Notification No. 123/81-C.E. would be liable for confiscation under Rule 210 of the Central Excise Rules, 1944 and whether the appellant would be liable for penalty under this Rule - Held that:- Penalty u/s 112(a) had been rightly imposed on the assesse and for the same reason, penalty in respect of indigenously procured excisable goods in respect of which the conditions of the exemption notification had not been fulfilled, had been rightly imposed under Rule 210 of Central Excise Rules, 1944 - the conditions of the exemption notification subject to which the goods have been imported free of duty have not been fulfilled, the provisions of Section 111(o) would be attracted and the imported goods would be liable for confiscation and hence the assesse who imported the goods, would be liable for penalty u/s 112(a) of Customs Act Decided against assesse.
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2013 (8) TMI 621
Recovery of Imported Goods - Liability of AAI for goods misplaced or stolen - Plaintiff (importer) had made payments to the foreign supplier for the consignment and even paid Customs Duty in respect of one consignment. The plaintiff had claimed not only the value of goods, including the Customs Duty and Interest for certain period but also damages on account of loss of reputation. The suit had impleaded AAI and the Customs authorities..
Held that:- the fact that the plaintiff did not pay duty, or approached the Customs authorities late, does not in any manner implicate or detract from the appellants duty of exercising diligent and proper care of the goods, till they were claimed and cleared. May be, if the plaintiff had neglected to clear the goods, after assessment, the Airport Authority would have, after issuing notice in terms of Sections 45, 46 and 48 of the Customs Act, entitled it to dispose of the goods, and apply the proceeds to realize customs duty dues (statutorily chargeable) and its detention or demurrage charges. However, those facts are not pleaded or proved before the Court. This court is also unpersuaded by the appellants submission that the principle of res ipsa loquitur did not apply. Even if it were inapplicable, arguendo, the plaintiff proved all the foundational facts in the case, such as their entry into India, on the dates alleged, the payment made to their suppliers, evidence of due filing of Bills of Entry, assessment of two of those, and payment towards one of them. It had also alleged that the non-availability certificate in respect of the consignments was not forthcoming, due to which it could not claim any insurance amount towards the lost or stolen consignment.
The judgment cannot be faulted with in holding that the goods belonging to the plaintiff (importer) went missing while they were in the care and custody of the defendant Authority.
Bar of Limitation Held that:- The plea of the Assesse that the suit was time-barred, as it was filed beyond the period of one year, under Article 72 of the Limitation Act, was meritless - As regards the factual findings in the judgment the Court had already noticed that they do not call for interference, and are unexceptionable Article 72 had limited application and applied to protect bona fide exercise of power, or bona fide omission to do something, under belief that such act or omission was covered by statutory authority - It was not only a limitation, but also restriction of ordinary rights and had to be strictly construed.
Only if the AAI had urged that it lost the goods from its custody, as a result of some omission (or act) which it bona fide thought was part of its duties, (traceable to some provision of law) would it be entitled to successfully say that the shorter period of limitation applied - Therefore, neglect of duty, whether statutory or otherwise, does not afford the State or state agency shelter of the shorter period of limitation - Decided against assesse.
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2013 (8) TMI 620
Disguised Attempt to Export - Department was of the view that assesse had attempted to export 166 MTs of Muriate of Potash in the guise of industrial salt - Held that:- It was quite clear that Agriculture Department, Government of Karnataka treated it as only Muriate of Potash and buyers purchased the item in auction believing that it was Muriate of Potash and there was no evidence that they subsequently complained that it was not Muriate of Potash and the buyers also got the samples tested and even then they have not complained - It cannot be said that the Agriculture Department, Government of Karnataka officers did not know what is Muriate of Potash.
Waiver of pre-deposit Assesse was unable to prove prima facie case - Assesse had not been able to make out justification for reducing the requirement of deposit of 50% of penalty in his case by making an exception - 7.5 Lakhs were ordered to be submitted as pre deposit - rest of the duty to be waived till the disposal - stay granted.
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2013 (8) TMI 619
Condonation of delay application was filed to condone the delay of 9 days on the ground of illness of the consultant Held that:- The first appellate authority should have condoned the delay of 9 days - delay has been explained properly as to there being serious illness of Consultant appearing before him as indicated in the medical certificate been given by Doctor - They should have considered this medical certificate sympathetically and in proper perspective and should have condoned the delay orders in appeals were set aside and the appeals were remanded back to first appellate authority to reconsider the issue afresh.
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2013 (8) TMI 618
Mis-declaration of description of goods export of non-basmati rice as basmati rice - redemption fine imposed - Various pleas raised in adjudication were demolished finding no basis nor backed by basic evidence for which the appellant failed to succeed in adjudication - Held that:- no leniency can be made to reduce redemption fine as redemption fine imposed by learned adjudicating authority - there was no rebuttal to the test report which proved that non-basmati rice were attempted to be exported.
Penalty - attempt to export was perpetuated as is apparent from record because appellant lost its plea of no presence at the time of loading of rice being baseless - Held that:- not inclined to reduce penalty to 10% of the imposed amount but recuded it to some extent - Penal proceedings are quasi-criminal in nature and quantum of penalty depends on gravity of offence, modus operandi, and the offence perpetrated. To ban perpetration or commitment of offence appropriate penalty is considered on the facts and circumstances of each case penalty reduced - appeal decided partly in favour of assessee.
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2013 (8) TMI 617
Stay application Revenue contended that the CHA had facilitated in clearing the consignments on the basis of forged/tampered licences. - waiver of pre deposit of penalties u/s 112(a) Held that:- the entire case starts on the basis of clearance of consignments based on forged/tampered licence. If the same is not available for defence of the assessee or the person, the appellant had made out a case for waiver of pre-deposit of the amounts involved - he had to defend himself against the charges of being involved in the import of goods which were cleared by producing forged/tampered invoices stay granted.
Condonation of delay - applications was filed for condonation of delay of ten days in filing the appeal Held that:- The delay was marginal - delay condoned.
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2013 (8) TMI 616
Export obligation - assessee did not produce the evidence of fulfillment of export obligation from the licensing authority within 30 days of expiry of period allowed for fulfillment of export obligation - Held that:- The appellant has fulfilled the export obligation - It was noticed from the order of Jt. DGFT that he had accepted the documents produced by the assessee and concluded that stipulated export obligation had been fulfilled by the applicant within the prescribed time and the license has been utilized properly issued duty free - the stipulated export obligation had been fulfilled within the prescribed time and the license was utilized properly for which it was issued duty free - only fault at the end of the party was that they had failed in submitting any original documents but that had happened due to the company had been declared as sick unit and now under BIFR decided in favour of assessee.
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2013 (8) TMI 583
Short Landing of Goods - Interpretation of Provisions Penalty u/s 116 - The issue involved was the interpretation of the relevant provisions of the Act as argued by the petitioner - In the case of short landing of the goods Section 116 of the Act provides for penalty for not accounting of goods - Held that:- The petitioner squarely satisfied the term agent or any person as he dealt with the goods at different stages of its shipment - A conjoint reading of Sections 116, 2(31) and 148 of the Act makes it clear that in a case of short landing of goods, if penalty was to be imposed on the person-in-charge of the conveyance, it can also be imposed on the agent so appointed by the person-in-charge of the vessel.
It was very clear that the steamer agent had filed Import General Manifest for goods which had been shipped and they also dealt with the customs department for appropriate orders that had to be passed in terms of Section 42 of the Act - The petitioner was a agent duly appointed - It had to be noticed that the authorities below have on facts come to the conclusion that the steamer agent had affixed the seal on the containers after stuffing and the steamer agent took charge of the sealed containers - If thast was the fact, then the customs authorities were justified in taking appropriate action for levying of penalty for the short shipment or no shipment in 40 containers.
SHAW WALLACE & CO. LTD. Versus ASSISTANT COLLECTOR OF CUSTOMS & OTHERS [1986 (7) TMI 106 - HIGH COURT OF JUDICATURE AT BOMBAY] - The petitioner as a steamer agent files an Import General Manifest and represents before the customs authorities as an agent of the shipper and conducts all affairs in compliance with the provisions of the Act, then the provisions of Section 116 read with Section 148 of the Act get attracted automatically and as a result penalty becomes leviable - The authorities below were justified in imposing penalty as contemplated under Section 116 of the Act - the writ petition filed for challenging the recovery notice failed Decided against Petitioner.
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2013 (8) TMI 581
Validity of Confiscation order - Benefit of Notification No.1/2011 - issue involved in the case was regarding the differential duty of Customs which had been confirmed by the adjudicating authority by denying the benefit of Notification No.1/2011 - Held that:- Goods are prima facie eligible for benefit of Notification No.1/2011-Cus Extending the notification and acknowledges the fact that the goods are needed for solar power generation project or facility - the benefit of Notification No.1/2011-Cus, cannot be denied to such goods - the appellant can be considered as a person who was holding himself out to be an importer confiscation order of the Goods was erroneous.
Stay application and waiver of pre deposit - assesseee has made out a strong prima facie case for pre-deposit of the amount of duty, interest and the penalty imposed pre- deposit amount waived decided in favour of assesse.
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2013 (8) TMI 580
Valuation of imported goods - assessee made an import from their collaborator and associated companies the case was registered in GATT Valuation Cell for examination and valuation of goods imported by them - the department's case had been to load the royalty of technical know-how payable to the supplier - Held that:- The department could not show that the royalty which they wanted to add to the assessable value was a condition pre-requisite for sale and the assessable value was not a true transaction value in terms of Section 14(1)(a) - the royalty can be included in the assessable value in case there are conditions for sale of the goods being valued and in case such royalty and fees are not included in the price actually paid or payable.
If the cost of technical know-how payment of royalty had no nexus with the working of the imported goods then such payment was not includable in the price of the imported goods court relied upon Commissioner of Customs Vs. Ferodo India P. Ltd. (2008 (2) TMI 12 - Supreme Court ) and Collector vs. Essar Gujarat Ltd.(1996 (11) TMI 426 - SUPREME COURT OF INDIA) decided against revenue
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2013 (8) TMI 579
Confiscation of Goods department contended that the goods were of foreign origin and assessee failed to produce any documentary evidence showing licit purchase/possession of the goods Held that:- The Commissioner (Appeals) was right in setting aside the order of confiscation and directing the Revenue to return the goods to the assessee - the goods were not notified u/s 123 and the provisions of Chapter IVA relating to notified goods had been deleted from the Customs Act more than a decade back - the Customs cannot absolutely confiscate the goods at all - as the goods had already been disposed of the Revenue was directed to refund the sale proceeds of the goods to the assessee decided against the revenue.
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2013 (8) TMI 570
Abetting diversion of Goods - Assesses were engaged in abetting diversion of Muriate of Potash which were imported at concessional rate of duty for use as fertilizer or in the manufacture of composite fertilizer the allegations against assessee prima facie, seems to be incorrect as they had produced records of proper accounting of imported fertilizers and sale thereof to the persons who were authorized to deal in such kind of goods.
Penalty u/s 112(b) and 114(i) - Waiver of pre deposit stay application -- none of the assessees had imported the goods The assessees were charged for export of fertilizers in the guise of Industrial Salt Held that:- The penalties imposed u/s 112(b) by any stretch of imagination cannot be fastened on all the assesses - assessee had made out a prima facie case for waiver of pre-deposit of the amounts involved waiver of pre deposit allowed decided in favour of assessee.
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2013 (8) TMI 546
Enhancement of Assessable Value Smuggling of Goods u/s 2(39) Confiscation of Goods u/s 111(d) - Redemption Fine and Penalty - Held that:- There was no dispute about import of old and used tyres which were found by Adjudicating Authority not hazardous but restricted items which could be imported only against a valid licence - Since no licence was produced by assesse even in Tribunal, those goods were smuggled goods under section 2(39) of Customs Act, 1962 for which all tyres were liable for confiscation under section 111(d) - Valuation as suggested by Chartered Engineer was also rightly adopted to levy duty - Redemption fine and penalty had also rightly been imposed which does not call for interference.
The value declared by the importer was in lower side as compared to the value suggested by independent Chartered Engineer and other contemporaneous import - the goods imported were not covered by the scope of the hazardous waste (Management, handling and trans boundary Movement) Rules, 2008 - the goods were undervalued and were imported in contravention of the provisions of import policy being restricted goods for which those were liable for confiscation u/s 111(m) and 111(d) of the Customs Act, 1962 respectively and while doing so, penalty was imposed u/s 112 of the said Act, value of import was re-determined Decided against assesse.
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2013 (8) TMI 545
Valuation - Nature of goods - Whether the goods were of inferior quality - Revenue was of the view that Synthetic Industrial Diamond Powder imported by the appellant was not proved to be of inferior quality Held that:- Materials on record do no suggest to entertain plea of respondent as to inferior quantity when burden of proof was not discharged by it - no evidence was adduced by the assessee to support its claim of proper declaration of description and value of export - there was a clear admission of under valuation as recorded by Adjudicating Authority at the time of recording of statement u/s 108 It was elementary principle of law that who had made averment had to prove its veracity decided in favour of revenue.
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