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Showing 61 to 80 of 132 Records

• 2013 (8) TMI 544
  

  Quantum of fine and penalty – whether the amount of fine and penalty could be reduced - Held that:- Court did not order any reduction in fine as a result of which fine of Rs. 2 lakhs is confirmed - So far as penalty is concerned the value of goods reduced by six times of the declared value and the reduction was nearly Rs. 29 lakhs – Making overall assessment of facts and circumstances depicted above, penalty is reduced to Rs. 4 lakhs - Penalty was imposed u/s 114(iii) - this section prescribes penalty not to exceed the value of goods as declared by the exporter or the value as determined under Customs Act, 1962, whichever is greater – Appeal allowed partly.

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• 2013 (8) TMI 543
  

  Misdeclaration or mistake – assessee contended that there was no misdeclaration but only for the mistake the spare parts were considered to be mis declared goods by Customs - Held that:- Court approve the adjudication as to the redemption fine and penalty was confirmed - Mis-declaration is patent from record for which so far as the consequence of bill of entry was concerned – penalty was reduced to some extent – appeal allowed partially.

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• 2013 (8) TMI 542
  

  Under valuation of goods - smuggled goods - appellant failed to explain the reason of under valuation department re-determined the value and upon confiscation thereof imposed the duty with option to redeem the goods on payment of fine and Penalty – Held that:- There was no exorbitant redemption fine and penalty imposed - the valuation adopted in adjudication does not appear to be baseless - the appellant did not come out with cogent evidence to support to its claim of declaration of proper value - appellant agreed to the enhancement during adjudication - it was difficult to disturb the adjudication at that stage since import was not made in terms of prescribed procedure of law rendering such goods to be smuggled goods – Once the goods are held to be smuggled goods under section 2 (39) of Customs Act, 1962, there was no scope at all to interfere to the adjudication – decided against the assessee.

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• 2013 (8) TMI 510
  

  Clearance of the Goods for exportation as per Section 51 - dispute was with respect to the goods presented for the purpose of clearance, physical verification of the goods as envisaged u/s 51 of the Customs Act - Held that:- The goods were not “examined” by the Customs Authorities - The examination of the goods had not taken place and there was no final clearance - Only endorsement was made subject to the examination of the goods - That could not be said to be authorizing the export after the lapse of the validity of the EARCs - the Customs Authorities were right in not clearing the goods for the purpose of export as the goods had not been examined exported within the validity period of the Export Authorization Registration Certifications - the validity of which stood expired and thereafter there could not have been any export made under those EARCs.

  The provisions of Sections 50 and 51 of the Act were determinative of time when the process of export commences and when the goods were loaded into the ship after clearance by the proper officer - they must be treated as having been exported so far as the exporter was concerned.

  The clearance had to be made after goods were physically verified as provided in Customs Manual Chapter 3(II) 40 to 245 - The goods did not go outside the territory of India, it could not be said that there could have been any export of the goods before examination and testing of the goods as provided in Section 17(2) of the Act - Thus export was not complete by presentation of paper of bill of export - The procedures prescribed make it clear that examination of the goods was sine qua non for the clearance of the goods – Decided in favor of revenue.

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• 2013 (8) TMI 509
  

  Remission of Duty - Shortage of Goods - Section 23 of the Customs Act, 1962 - Assesse had imported a consignment of Chinese Metallurgical Coke and cleared the goods for re-warehousing on the provisionally assessed warehousing bills of entry for the purpose of manufacture of Charge Chrome in their factory - Section 23 of the Customs Act, 1962 was to be extended also to the assesse in case of Transit loss during the transfer of goods from one warehouse to another - Held that:- Revenue had not been able to make out a case for not allowing the remission in case of the genuine loss occurred due to natural causes in the process of warehousing/re-warehousing of the goods – relying upon IOC vs. Collector of Customs, Bombay [1985 (5) TMI 62 - CEGAT, NEW DELHI] and Bharat Petroleum Corporation Ltd. vs. Collector of Customs, Bombay [1983 (7) TMI 195 - CEGAT, BOMBAY].

  The Deputy Commissioner dropped the demand on the ground that loss was only to the extent of 1.13%, the goods were highly susceptible to moisture variation and therefore, the shortage was genuine - there was no allegation of theft, pilferage or clandestine removal - He accordingly granted remission of duty on lost, destroyed or abandoned goods under Section 23(1) of the Customs Act, 1962 – the shortage was genuine and did not occur due to negligence, such losses occurred due to natural causes like the nature of the goods being susceptible to moisture, weigh-bridge difference and handling loss due to loading and unloading of the materials at both ends - There was no warrant of demand of duty from them - the Appeal of the Revenue was dismissed and the Order passed by the Commissioner (Appeals) is upheld – Decided against revenue.

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• 2013 (8) TMI 508
  

  DEPB - Over invoicing - Revision of PMV (Present Market Value) and FOB value – Confiscation of goods u/s 113(d) – Penalty u/s 114 - notice was issued u/s 124 r.w Section 113 alleging misdeclaration of material facts and value of the goods exported - Whether there had been overvaluation of the consignments of steel balls exported by the assesse during the period for the purpose of obtaining higher DEPB credit than eligible – Held that:- FOB values and the PMV declared by the assesse in the shipping bills under which they had undertaken the export were correct and valid in law – The PMV cannot be challenged by going into the cost of manufacture - The burden to prove that PMV was inflated one was on the Department which had not been discharged - Revenue had not succeeded in making out a case against the assesse as the PMV declared was not more than 150% of AR-4 value - during the material period the Department allowed export of goods by other exporters under DEPB Scheme at much higher FOB values than what had been declared by the assesse and the details of the transactions were available with the Department for cross-checking.

  Additional evidence cannot be allowed to be submitted and considered at the appellate stage - the delay was almost 10 years after the issue of show-cause notice - the request of the Department was very strange and quite unconvincing – Request for filing additional evidence at this stage since it appears to be only a ploy to delay the case further could not be accepted - the present market value arrived at by the assesse were within permissible limits – assesse had realized the full export proceeds through proper banking channels and within the extended period granted by the Reserve Bank of India - Merely because there had been a delay in the realization of export proceeds the Department’s conclusion that the entire transaction was a sham one had no basis and had to be rejected totally - DEPB credit claimed @22% of the FOB value by the assesse was rightly entitled – order set aside – penalty Set aside – Decided in favor of assesse.

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• 2013 (8) TMI 507
  

  Benefit of Notification No.25/99 - Duty liability for shortage of the quantity imported by availing the benefit of Notification No. 25/99(Cus) read with Customs (Import of Goods on Concessional Rate of Duty for Manufacture of Excisable Goods) Rules - Held that:- The findings recorded by the adjudicating authority for confirming the demand were correct upheld - the assesse was not able to prove the case - As per the said Customs Rules, it was mandated that the appellant should and maintain the stock registers of the goods imported at concessional rate of duty for the use in his factory – In the absence of any such evidence that the said short found quantity was in fact used by the appellant in his factory premises for the purpose of manufacture – Decided against assesse.

  Penalty u/s 112(a) – Held that:- Managing Partner needed to be penalized for his activity - penalty imposed by the adjudicating authority u/s 112(a) was reduced to half - As the penalty was not proportionate to the demand of the duty which had been confirmed - the person who was looking after the day-to-day affairs of the company should have been more diligent to check and counter¬check the stock position in his factory premises - Due to the non-effective supervision there was a shortage which were imported under concessional rate of duty – decided partly in favor of assesse.

  Valuation - Transaction value, rejection on suspicion that same underdeclared - Misdeclaration of goods – following the judgement of Crystal Dot Scan Pvt. Ltd. v. CC&CE, Hyderabad-II [2010 (7) TMI 708 - CESTAT, BANGALORE] - Held that:- if value declared is rejected, Revenue should establish with details of contemporaneous imports of such or similar goods, that the price declared is not correct transaction value and the value has to be determined under CVR - Commissioner did not reject the transaction value for valid reasons in the absence of contemporaneous imports of comparable CTP machines at higher prices. - the revision of price, demand of differential duty and interest, confiscation of the impugned machine on the ground that the importer had mis-declared its value and consequent penalties were not sustainable – Decided against revenue.

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• 2013 (8) TMI 506
  

  Import of low quality rough diamonds - prohibited goods - Misdeclaration of Value – Overvaluation – Confiscation of goods – Penalties Imposed - Revenue was of the view that the value of the rough diamonds was misdeclared and the value declared was highly exaggerated – Whether the over-invoicing as claimed by the department was to be upheld and whether the value revised as per the provisions of Section 14 of Customs Act, 1962 – Held that:- The transaction value cannot to be accepted until and unless it was shown by some contemporaneous evidence that the price declared in the invoice was not the correct price - the department had shown from the contemporaneous evidence that the invoices were either fabricated or fake or that any relationship existed between the importer and the exporter – sufficient evidence had been gathered to show that the price was inflated.

  Liability of consignments to confiscation Whether the consignments of rough diamonds were liable for absolute confiscation u/s 111(d) and 111(m) of the Customs Act, 1962 – Held that:- The value had been misdeclared and therefore the value declared had to be rejected - We have also taken note of the provisions of the Section 111(d) of Customs Act, 1962 and have already noticed that goods were to be treated as the ones which were prohibited for import under the Exim Policy - Therefore the goods were liable to confiscation u/s 111(d) of Customs Act, 1962.

  Absolute Confiscation - Whether absolute confiscation was warranted in the case –Held that:- It was not only that the parties concerned had attempted to import rough diamonds at highly exaggerated value but also they attempted to manipulate the records and mislead the department that there was a mistake in preparation of invoice – The extent of over-invoicing was so high that the actual value of the goods was found to be 3.56% of the actual – It would not be fair on to consider the past activity for the purpose of deciding whether goods have to be absolutely confiscated or not - Om Prakash Bhatia v. CC, Delhi [2003 (7) TMI 74 - SUPREME COURT OF INDIA] - the rough diamonds had to be held as prohibited under the law - But the extent of over-valuation which if allowed would have resulted in repatriation of foreign currency itself would show that this was a case where no lenient view was called for - Therefore the decision to absolutely confiscate the rough diamonds under seizure had to be upheld - reduction of value of rough diamonds imported and the revised value determined by the Commissioner was upheld - the order of absolute confiscation u/s 111(d) of Customs Act, 1962 was also upheld.

  Whether all the assesses were liable to penalty u/s 112(a) of the Customs Act, 1962 - Held that:- As the values of the goods to be imported was highly inflated and the same was also proved beyond doubt - thus Penalties were also imposed u/s 112(a) of Customs Act – Decided against assesses.

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• 2013 (8) TMI 473
  

  Provisional Assessment - Held that:- The assesse was directed to deposit 20% of the provisional assessment duty in cash or by way of demand draft as the case may be - For remaining amount of duty assesse shall furnish a bond along with bank guarantee.

  Conditions for allowing provisional assessment - Following the Judgement of Mohammed Fariz and Co. Vs. Commissioner of Customs [2011 (3) TMI 1338 - KERALA HIGH COURT ] - Where the proper officer on account of any of the grounds specified in section 18(1) of the Customs Act, 1962 was not able to make a final assessment of the duty on the imported goods or the export goods, as the case may be, he shall make an estimate of the duty that is most likely to be levied hereinafter referred to as the provisional duty - If the importer or the exporter, as the case may be, executes a bond in an amount equal to the difference between the duty that may be finally assessed and the provisional duty and deposits with the proper officer such sum not exceeding twenty per cent of the provisional duty, as the proper officer may direct, the proper officer may assess the duty on the goods provisionally at an amount equal to the provisional duty.

  Surety or security of the bond — The proper officer may require that the bond to be executed under these regulations may be with such surety or security, or both, as he deems fit - assesse shall further execute a bond that penalty was also imposed upon the assesse in respect of undervaluing the goods.

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• 2013 (8) TMI 472
  

  Scope of Judicial Review – Review of the decision of the Settlement Commission - power to grant immunity from prosecution - held that:- There is limited scope of judicial review - Despite such narrow confines of judicial review of the decision of the Settlement Commission, it is undeniable that the jurisdiction under Article 226 of the Constitution is not totally ousted. - it was undeniable that the jurisdiction under Article 226 of the Constitution was not totally ousted - In a given situation if the Settlement Commission had taken into consideration irrelevant facts and such consideration had gone into its decision-making process resulting into grave injustice and prejudice to the party then within the narrow confines of the judicial review, interference would still be open.

  Opportunity to Produce Materials - The Settlement Commission gave full opportunity to both sides to produce materials on record - The Tribunal upon completion of the hearing noted that this was not the first case where the company was involved in the breach of the provisions of the Customs Act - On earlier occasion, the company was visited with a penalty imposed by the Settlement Commission for irregularity in imports - There was no irregularity in the Commission’s order in imposing penalties on the company and the two Directors - the provisions of Chapter XIVA nowhere provided that the Commission cannot increase the penalty from what was originally imposed when a party might file an application for settlement - the Commission had a special power to waive prosecution under certain circumstances - the Commission while exercising such powers, granted total immunity from prosecution to the company as well as to the two Directors - With the narrow scope of judicial review available in a writ petition - there was no reason to interfere.

  The Commission took into consideration irrelevant and extraneous materials - The conclusion of the Commission that assesses were habitual offenders was not based on any material on record - the decision of the Commission in this respect was required to be reconsidered - the court was not concerned with the ultimate decision but the decision-making process - the process was vitiated on account of irrelevant considerations having weighed with the Commission – Order of the Commission partly allowed - Proceedings were remanded to the Settlement Commission for fresh consideration.

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• 2013 (8) TMI 471
  

  Fraudulent declaration of the description and under valuation of the goods – assessee imported containers which were found to be vegetable oil instead of declared description of vegetable fatty acid – Held that:- Assessee fabricated import documents were presented so as to manage the import of goods undervalued and mis-declared them to evade customs duty - He suppressed the correct transaction value and description fraudulently - Goods liable to be confiscation u/s 111 (d) and (m) – there was willful fraudulent intention to evade customs duty – differential duty was demanded – penalty was imposed – assessee failed to establish the description of the declaration that established undervaluation by nature of the goods - appeal decided ex- parte – decided against the assessee.

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• 2013 (8) TMI 470
  

  Classification of Goods - Import of ‘Inula racemosa’ and ‘Chinese Ginseng’ - Goods imported by the assessee were found to be mis-declared by description – Revenue proceeded to ascertain the value - Revenue confiscated the goods granting an option to redeem the goods on payment of redemption fine - Held that:- Test report of goods did not reveal in favour appellant there was no necessity to interfere with the adjudication finding as to the nature of goods – duty was also confirmed.

  Quantum of redemption fine and penalty payable – Held that:- Imposition of fine may not be improper in the fitness of the circumstances of the case and reducing penalty to 50% of the duty element would be justified - imposition of huge fine shall cause undue hardship to the appellant and the penalty to the extent of duty element shall also be harsh - appeal decided partly in favour of assessee.

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• 2013 (8) TMI 469
  

  Reduced penalty - appellant has allowed others to use his CHA licence and committed offence under Customs Act, 1962. - Held that:- record does not reveal that the appellant had hatched conspiracy against Revenue - penalty of the magnitude of Rs. 20 lakhs may be disproportionate to the act of letting out of CHA licence not permitted by law – quantum of penalty of Rs. 5 lakhs shall be reasonable - overall assessment of the facts depicted and finding that the appellant was not an abettor to the offence committed - penalty aspect should not be dealt leniently – penal proceedings being quasi-criminal in nature, taking into consideration the civil punishment the appellant had already undergone penalty reduced from 20 lakhs to 5 lakhs - Appeal was allowed partly

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• 2013 (8) TMI 434
  

  Penalty u/s 112, and Rule 209A of the Central Excise Rules - stay - wrong declarations in the export documents by which the goods exported were liable to confiscation - Held that:- Penalties u/s 112 and Rule 209A of the Central Excise Rules were not imposable because the assessees in that case did not deal with the goods - assesseess had made out a prima facie case for complete waiver of the penalties imposed u/s 112 and Rule 209 A/ Rule 26.

  Penalty u/s 112A and 114 – department contended that assessees had the knowledge that the goods obtained under duty exemption were not utilized for the manufacture of finished goods which were required to be exported thus penalties had been correctly imposed – Held that:- Assessee had made wrong declarations in the export documents by which the goods exported were liable to confiscation – they were liable to penalty u/s 114 – they had not made out a prima facie case for complete waiver of pre-deposit of penalties imposed u/s 114 for handling such goods.

  stay petition – waiver of pre deposit - Assesses were directed to pay 50% of the penalties imposed upon them u/s 114 - On payment of the pre-deposit - stay on the remaining amounts of penalties would be granted – appeal decided partly in favour of assessee.

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• 2013 (8) TMI 433
  

  Smuggling of goods - Cut & polished diamonds and Gold jewellery recovered from the baggage/person - Accounting procedures – penalty u/s 112 r.w.117 - Held that:- accounting procedure adopted by the assessee was proper and correct in the normal course of business and goods were not held liable for confiscation - no penalty was warranted under Section 112 r.w. Section 117 - The method of accounting had been explained by the employees of the said company in their various statements - It was stated that the system of accounting of stock by them was being followed by them since long and that even income tax authorities did not take any objection against this procedure - the allegation that they were having possession of unaccounted diamond was based on method of accounting adopted by them – The system was recognised in Gem & Jewellery trade.

  The Income Tax authorities which were more acquainted about the accounting procedure had also stated that the accounts of assessee were found to be correct and complete considering the submissions of the assessee and also acceptance method of accounting of revenue in past assessment years and in original assessment years - in all the case diamonds polished ones were entered in the next year - Income Tax office had also given its finding that no material had been found by any authority indicating that the assessee had made any advance for illegally importing diamonds - the diamonds recovered by the customs authorities and paid the customs duty as per the order of Settlement Commission - Thereafter it was found that accounting procedure followed by the assessee were proper and legally correct and there is no discrepancy in the stock of diamonds.

  Smuggling of goods – Held that:- Proceedings of confiscation of diamonds were dropped - No evidence had been brought on record by the department which establish that the assessee was involved in the activity of illegal import or smuggling of diamonds – no evidence on record to establish that any dutiable or prohibited goods were attempted to be illegally imported or were removed from the customs area to invoke Section 111(d) or 111(j) – Decided in favor of assesse.

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• 2013 (8) TMI 432
  

  Misdeclaration of goods - of shipping bill was presented samples of the goods contained in the Container were taken and sent to CRCL for testing - Although the goods were declared by the assesse as mud Additive Chemicals that was proved to be 'urea in the form of white Granules' which was prohibited goods u/s 2(33) – Held that:- It appears that fraud was committed against Revenue as was revealed from reasoned and speaking order – there was a mis-declaration in the present consignment and there was attempt to defraud Revenue and surrounding circumstances question conduct of assesse - the adjudication order that the test report remained uncontroverted - Adjudicating authority had brought out the mis-declaration - Authority was quite aware of the character and nature of the goods with the classification of the goods under Customs Tariff Act, 1962 - When he could know that there was a deliberate mis-declaration to willfully export urea from India for undue enrichment he proceeded on the basis of the outcome of the investigation and materials before him.

  Waiver of pre deposit Penalty u/s 114and 114AA - Assesse failed to avail redemption option against prohibited goods and two years had already expired from the date of seizure - court ordered 30% of the duty to be submitted – on such submission rest of the duty to be waived till the disposal of the issue – decided partly in favor of assesse.

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• 2013 (8) TMI 431
  

  Amendment in the Shipping bills - In the shipping bills assesse did not file any declaration for claiming the export incentive – they subsequently filed an application with DGFT for duty credit entitlement towards VKGUY Scheme under Chapter 3 of the Foreign Trade Policy 2004-2009 along with all the relevant information - Whether the declaration required to be made in terms of exports after 31.5.08 can be allowed to be made subsequent to the export of the goods.

  Difference of opinion - matter referred to larger bench to decide the following question - Whether it is proper to make amendments in the shipping bills to include the declaration as desired by the respondent as recorded by Judicial Member? or Whether it is proper to refuse such amendments as held by the Technical Member?

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• 2013 (8) TMI 430
  

  Refund of duty - whether the assessee were eligible for refund of additional duty of customs leviable u/s 3(5) of the Customs Tariff Act paid at the time of clearance of goods from SEZ to DTA – Held that:- The adjudicating authority was correct in coming to the conclusion that the appellants were eligible for refund of the amount of SAD paid by them – court relied upon the judgement of Industrial Suppliers Pvt. Ltd. vs. Union of India(1980 (8) TMI 197 - SUPREME COURT).

  whether an assessee was eligible for refund of such duty paid by them on goods under Notification No.102/2007 – Held that:- The intention of the legislature by promulgating Notification No.102/2007-Cus. was to give refund of SAD paid by the importer on goods, on subsequent sale subject that conditions are fulfilled - the appellants had discharged the SAD leviable on the goods when procured from SEZ, and have subsequently sold the same, benefit of refund of the said SAD as per Notification No.102/2007-Cus cannot be denied to them only on the ground that movement of goods is from SEZ and it cannot be construed as import of goods – order set aside – deicided in favour of assessee.

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• 2013 (8) TMI 414
  

  Foreign Travel Tax (FTT) - Delay in Depositing the amount – The “Carrier” failed to deposit an amount of towards the FTT for the month of March, 2003 within the period as stipulated in Rule 9 of the FTT Rules, 1979 read with Notification No. 1/2002 and deposited the same after a delay of 2 days – The Applicant while denying all the charges submitted that there was no delay and if any it was not deliberate or intentional - Notice was issued as to why the amount should not be recovered from them towards interest in terms of Section 35A(1) of the Finance Act, 1979 read with Notification No. 3/94-FTT for depositing the said amount of FTT after a delay of 3 days and penal action under Section 38(3) of the Act for violating the provisions of Rule 4 of the FTT Rules, 1979 - Held that:- The applicant failed to deposit the full amount of tax collected into the account of the Central Govt. by due date, hence they were liable to penal action under Section 38(3) in addition to the payment of tax not so paid and the interest leviable - The only option with the adjudicating authority was the quantum of penalty to be imposed on the applicant which was to be within the range of minimum one-fifth of the tax not paid and maximum up to three times tax not paid as prescribed in the Section itself - The adjudicating officer had imposed the appropriate minimum penalty after considering all the facts, circumstances and submissions of the applicant as made - Therefore Commissioner (Appeals) has rightly upheld the imposition of said penalty.

  Applicant had deliberately contravened the provisions of Section 38(3) of Finance Act, 1979 (FTT) - For these contraventions, the applicant was now circumventing the basic truths and for these contraventions the department had very rightly imposed the minimum penalty as mandatorily prescribed in the Section itself – The conclusion of the Government finds support from the judgement MALAYSIAN AIRLINES Versus UNION OF INDIA [2010 (8) TMI 786 - BOMBAY HIGH COURT] – Decided against applicant.

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• 2013 (8) TMI 399
  

  Escapement of duty – whether there was the case as to the escapement of duty on the part of assessee – department was of the view that they had artificially splited into the values to software and hardware and claimed nil rate of duty on the value of CD ROM/software while paying duty for the hardware HWT imported separately through port - Held that:- Order passed by the Commissioner on appreciation of erroneous facts - order was not sustainable in the eyes of law – Court followed the judgement of PSI DATA SYSTEMS LTD. Versus COLLECTOR OF CENTRAL EXCISE (1996 (12) TMI 47 - SUPREME COURT OF INDIA) - order was beyond the scope of the show-cause notice - Hardware and software to be assessed independently on merits whether they imported together or separately - Commissioner had gone beyond the scope of show-cause notice by holding that the appellants have inflated the value of software – decided in favour of assessee.

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