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Showing 81 to 100 of 132 Records

• 2013 (8) TMI 398
  

  Applicability of Notification No.04/2006 - appellant imported Indigo powder 94 percent Wettable falling under chapter 3204.1559 claiming the benefit under Notification No.04/2006 from the payment of CVD – department rejected the claim on the ground that condition of the notification No.04/2006CE was not fulfilled – Held that:- Exemption notification should be read literally and if once it is found that notification applicable to case of assessee, the same has to be construed having regard to purpose and object it seeks to achieve court followed the judgement of Commissioner of Customs, Amritsar vs. Malwa Industries ltd.(2009 (2) TMI 41 - SUPREME COURT) - while considering serial no.67 of Notification No.04/2006-CE had held that same factory meaning that imported goods are required to be used in the factory belonging to the importer where manufacturing activity takes place - if the excisable duty was not leviable on manufacture of goods, question of importer paying any additional duty for import of like goods does not arise – order set aside – decided in favour of assessee

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• 2013 (8) TMI 397
  

  Reduction in amount of fine and penalty - the goods were confiscated u/s 111 (d) for violation of the import control restriction - appellant paid the redemption fine, penalty and customs duty and cleared the good - appeal filed being aggrieved that the redemption fine and penalty imposed is very high and needs to be set aside – Held that:- in case of such multiple contraventions the redemption fine imposed was only about 17% and this cannot be considered as excessive - penalty imposed was about 6% and therefore both these should not be interfered with – appeal decided against the assessee.

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• 2013 (8) TMI 396
  

  Leviability of duty - assessee imported and cleared a consignment of 'Polyether Polypol' under brand name of 'Voranol-3010' - DC by order had decided that 'Voranol-3010' was leviable to safeguard duty on the basis of lab opinion – Held that:- The findings of Commissioner (Appeals) was fair and reasonable and no reason to interfere - Commissioner (Appeals) remanded the matter to the adjudicating authority for de novo adjudication - the Commissioner (Appeals) set aside the order of the lower appellate authority and allowed the appeal of the assessee - the lower authority proceeded on the basis of evidence of the manufacturer's specification provided by the Department and decided the issues without supplying to them - It was seen from the record that the matter was remanded on an earlier occasion - the submission of learned AR was not maintainable – decided agiasnt revenue.

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• 2013 (8) TMI 395
  

  Waiver of pre deposit of penalty u/s 114A and 114AA– redemption fine u/s 125 - stay application – Held that:- The SRFR products were imported to meet warranty obligations and were not meant for resale - all the expenses incurred by the assessee for import of products were reimbursed by the supplier - These reimbursements were in addition to the "funding discount" claimed on SRFR imports - "funding discount" was applicable only to complete products meant for resale and not permissible in respect of SRFR products which were not meant for resale - against the demand of duty in respect of SRFR products HP (India) had not made out a prima facie case - HP (India) misdeclared the value of the goods and also suppressed vital facts with intent to evade payment of appropriate duty of customs - the extended period of limitation had been rightly invoked in this case – 120 crores were asked to be submitted as pre deposit – after such submission rest of the pre deposit was ordered to be waived – decided partly in favour of assessee.

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• 2013 (8) TMI 394
  

  Confiscation of goods – excessive penalty imposed – department confiscated the goods and allowed its redemption on payment of a fine and penalty – held that:- Penalty imposed by Commissioner (Appeals) was excessive – court did not agree with the arguments that the penalty to be imposed u/s 114 had to be equal to the duty sought to be evaded – court followed the judgement of COMMR. OF CUSTOMSTuticorin Vs Sai Copiers 2008 (1) TMI 402 - HIGH COURT OF JUDICATURE AT MADRAS – court reduced the penalty – decided partly in favour of assessee

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• 2013 (8) TMI 358
  

  Condonation of delay – assessee gave the reason that they did not receive order in original at the given address - Held that:- there was no reason to accept that order in original was not received - the order were returned undelivered but the order in original sent to known postal address was not returned undelivered - The address was the same what was mentioned in the COD application – the delay in number of days in filing each appeal had not been specified in the applications.

  The medical prescriptions relied upon by the appellant in respect of condonation of delay are of no help to the appellant because nowhere in these documents it is coming out that at any time appellant was admitted in hospital for a longer period and was bet ridden – appeal decided against assessee

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• 2013 (8) TMI 357
  

  Stay application – oil has been supplied to the various merchant vessels - shipping bill was cleared for export by the customs authorities indicating on the shipping bill that "bonded bunker not to be landed". This would indicate that the warehoused gas oil. when they were imported duty free, has been removed from their warehouse for loading on to the vessel which is on a foreign run. - assessee had deposited the amount during the investigation as against the confirmed demand – Held that:- amount deposited by the assessee was enough deposit to hear and dispose the appeals - assessee was able to demonstrate that the goods which were cleared from their bonded warehouse had been loaded on to the foreign going vessel which was their prime responsibility - combined reading of Section 69 and 88 would indicate that once the goods were loaded or taken on board of any foreign going vessel - they had to be considered as exported out of India was a correct proposition - the invoices had been raised by the assessee which were paid by the purchaser of the gas oil and the bank remittance certificate clearly indicates an invoice number which was raised by the assessee – Applications for the waiver of pre-deposit of the balance amounts involved were allowed and recovery stayed - decided in favour of assessee.

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• 2013 (8) TMI 356
  

  Goods whether seconds/ defective or not - Import of Non-alloy Hot-rolled Cut Steel Sheets - importer claimed the benefit of notification No.21/2002 which prescribes ‘nil' basic customs duty on such goods other than seconds and defectives – Held that:- On visual inspection the goods appeared to be secondary ad not of prime quality - the price declared for the goods under import match with those for prime material - It does not appeal to common sense or logic that any prudent man would pay the price of prime metal for procuring seconds/defective material – order of the department for demand of duty was set aside – appeal decided in favour of assessee.

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• 2013 (8) TMI 355
  

  Interest on delayed refund – Refund of duty – assessee filed an appeal for refund of duty – supreme court granted the refund in favour of assessee. - Against the refund granted the assessee made claim of interest – department denied the same – assessee contended that refund arose u/s 18 was governed by Section 27 - Revenue denies on the contention that ground that Section 18 (2) entitles to refund if any arises out of finalisation of provisional assessment automatically whereas refund u/s 27 was a claim without a suo motu grant – Held that:- Delay in granting refund having been made even after 18.7.2006 till 13.7.2007 – assessee was entitled to interest on the refund from interest u/s 18(4) – but before 13.7.2006 was time barred - suo motu refund was a grant of section 18(2) whereas claim of refund was envisaged by section 27 – an assessee assumes right to refund u/s18(2) - section 27 determines a right to refund upon claim – court followed Commissioner of Customs Vs. Indian Oil Corporation (2012 (1) TMI 31 - DELHI HIGH COURT) – sub-sections (3), (4) and (5) introduced to section 18 of Customs Act, 1962 have no retrospective effect - Thus right to interest under Section 18(4) of Customs Act, 1962 before 13.7.2006 is accordingly barred. However delay in granting refund having been made even after 18.7.2006 till 13.7.2007, appellant is entitled to interest on the refund from 13.7.2006 to 13.7.2007 only. - decided in favour of assessee.

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• 2013 (8) TMI 354
  

  Classification of Goods – Held that:- Directorate General of Central Excise Intelligence was given order to conclude the investigation on as to whether the goods in question were classified under Tariff Item No.848221 or under Tariff Item No.732616 - In case, after investigation it was found that the goods in question were classifiable under Tariff Item No.848221 - the adjudication by the CC shall be concluded as far as possible within a period of two months thereafter subject to complying with the procedure as required and after giving adequate opportunity to the assesse - If it was found that the assesse was not cooperating after giving reasonable opportunity it will be open for the CC to proceed further with adjudication ex-parte after recording reasons.

  Duty Drawback – Held that:- CC shall comply with the order passed by the court by which the Revenue more particularly CC was directed to process the pending drawback claims at the rate of 2% if it found that the petitioner had complied with the requirements under rules and regulations - shall pay drawback to the assesse on appropriate value of the exports – SLP disposed of by giving instruction of proper adjudication by the department - Decided in favor of assesse.

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• 2013 (8) TMI 353
  

  Condonation of Delay - Held that:- There were sufficient cause for condonation of the delay - their excise consultant had met with a severe accident and there consultant was not well therefore they could not draft revision applications in time - One medical certificate was also submitted.

  Fixation of Brand rate of drawback - Revenue rejected the application for fixation of brand rate of drawback under Rule 6 on the ground that export value was less than the value of imported materials – Held that:- The requirement of Rules/ Circulars as substantial requirement of law and cannot be considered as minor technical lapse – The entire case matters should be considered and proceeded as per the statutory provisions of relevant rules/circulars and on the basis of all the legal documents which stands finalized as per the prescribed procedure – following M/s. Paper Products Ltd. v. CC [1999 (8) TMI 70 - SUPREME COURT OF INDIA] - The plain reading of statute as clarified and elaborated vide the C.B.E. & C. Manual and circulars were mandatorily binding on the departmental authorities – and INDIAN ALUMINIUM COMPANY LTD. Versus THANE MUNICIPAL [1991 (9) TMI 162 - SUPREME COURT OF INDIA] - when provisions were stipulated for doing a particular act in a specific manner then it would mean that any deviation therefrom was not permitted at all and it should be performed in that manner itself as per Rules.

  Purpose of Rule 8(2) of Drawback Rules - Rule 8(2) provides the formula to ascertain value addition as provided under Board Circular No. 14/2003-Cus - the value as per Bill of Entry and Shipping Bill were to be necessarily taken into consideration - Any subsequent negotiations or re-settlement of prices to be paid specifically when the assesse had paid the duties at the time of imports through DFCE licence cannot override the statutory provisions - The orders-in-appeal were therefore upheld for being perfectly legal and proper– Revision application Rejected – Decided against assesse.

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• 2013 (8) TMI 319
  

  Condonation of delay – stay application – appeal was filed for condoning the delay of 534 days - Held that:- The delay was of 534 days and there is no reason for details of long delay – the contention of the applicant was not supported by any evidence - the applicant merely stated that she was not well and she was suffering from gynaecological disorder and also taking treatment in USA as her children were there - condonation of delay depend on the facts of each case and it is the duty of the applicant that they should explain the reason for delay in detail – appeal and stay application rejected – decided against the applicant.

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• 2013 (8) TMI 318
  

  Differential custom duty - concessional rate of duty under Notification No.21/2002 and Notification No. 21/2005 - import of goods (inputs) of Chapter 84 for manufacturing mobile/cellular phones and parts/components/ accessories of mobile phones. - As per Department the assessee could not validly claim the benefit of Sl. No. 28 either - The investigative findings made their way into a show-cause notice - in adjudication whereof the learned Commissioner denied the benefit of the Notification to the assessee and confirmed the demand of CE duty against them – Held that:- The assessee’s argument that the assessments on the Bills of Entry could not had been reopened/reviewed by way of issue of a show-cause notice u/s 28(1) of the Customs Act is, prima facie, untenable - UOI Vs. Jain Sudh Vanaspati (1996 (8) TMI 108 - SUPREME COURT OF INDIA) – claims of the assessee with regard to CENVAT credit and quantification of duty were no better.

  It appears, an opinion given by BSNL and one given by VJTI in favour of the appellant are the main basis for the appellant to claim that FWTs could be considered as mobile/cellular phones. Prima facie, BSNL being the buyer of the goods manufactured and supplied by the appellant cannot be considered as a detached and independent expert and therefore BSNL's opinion may not be reliable. VJTI's opinion was taken by the appellant on 03/05/2012 and submitted to the Commissioner and the same was not accepted inasmuch as the Institute's authenticity to issue such opinion/certificate was not established by the appellant and the opinion/certificate was found to have been issued without examining the basic function of the FWTs. Apparently, the adjudicating authority has stated specific and cogent reasons for not accepting either of the two certificates.

  Extended period of limitation - Held that:- Apart from the fact that there was difference of opinion even in the Department, the fact remains that the department officials had been regularly visiting the factory of the appellants and were in the know of the process of manufacture adopted by the appellants and to state that the appellants had played fraud on the department is difficult to sustain. - Demand beyond normal period set aside.

  Stay application – waiver of pre deposit - the entire demand of duties having been confirmed against the assessee for periods beyond the normal period of limitation – court granted the bar of limitation - waiver of predeposit and stay of recovery are ordered against the demands of duties on the ground of limitation - decided in favour of assessee.

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• 2013 (8) TMI 317
  

  Jurisdiction on the Settlement Commission - Confiscation of Goods – Interest and Penalty – the applicant moved the Settlement Commission under Section 127(1) – Held that:- Provisions relating to baggage fall under Chapter 11 of the Customs Act, the provisions relating to confiscation - which were invoked in the present case were general in nature and apply to all classes of imports - made either where goods are sought to be cleared under Chapter 7 or under Chapter 6 as in the present case. This observation of the Court is strengthened by the fact that Section 127(B) itself enumerates the kinds of cases which cannot be entertained by the Commission, for instance listed in third proviso of Section 127(B)(i) - Having regard to these and the observations of the Madras High Court in Commissioner of Customs v. Customs & Excise Settlement Commission [2007 (10) TMI 83 - HIGH COURT MADRAS ] - the argument of the Revenue on this aspect lacks in merit.

  In the absence of filing of bill of entry, the application filed was not maintainable was wholly misconceived – Held that:- The application filed was maintainable it was not open to the revenue to contend that the Settlement Commission was in error in entertaining the application – the Commission noticed that baggage is a specific item under Chapter heading 98.03 of the Customs Tariff Act, 1985 - It rested its conclusion on the fact that the duty computed by the Revenue in the show cause notice itself was 35% ad valorem which related to baggage - Idris Y. Porbunderwala [2005 (6) TMI 302 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,].

  On a careful reading of Sections 127(A) and 127(B) the Revenue’s contention that since the applicant had not filed bill of entry or that the case was one relating to baggage and therefore did not involve short levy or non-levy was without force - The provisions that confer jurisdiction on the Settlement Commission cannot be construed as narrowly as it sought to be urged by the Revenue - If parliamentary intention was to exclude adjudication by Customs Authorities in respect of baggage claim, from the purview of the Commission’s jurisdiction, surely such intention would have been more clearly manifested like in the case of 3 proviso of Section 127(B)(i) – petition allowed – Decided in favor of assesse.

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• 2013 (8) TMI 316
  

  Mis-declaration of Goods - Prosecution - Criminal proceedings - Assesse imported consignments and cleared the same for home consumption – Revenue was of the view that in order to avoid Anti-Dumping Duty in terms of notification No.147/2003-Cus, mis-declared the consignments of measuring tapes to be of Malaysian origin whereas the goods are of Chinese origin – Whether the declaration given by the accused stating that the consignments were measuring tapes of Malaysian origin was correct or not – Held that:- The issue can be decided only by way of adjudication and by scrutiny of relevant records - on the side of the prosecution, triable issues were involved – the assesse with mala-fide intention of evading duty had mis-declared the items – Held that:- Assesse had produced the fabricated certificate to show the country of origin as Malaysian origin instead of China with the intention to evade Anti Dumping Duty – Assesse knowingly had produced the overseas invoice which was fabricated.

  Petition for Discharge from Criminal proceedings - Held that:- The petition for dismissing the discharge petition was not entertained - The prosecution case was at a partly heard stage - Revenue had made out that the accused had evaded payment of duty – Decided against assesse.

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• 2013 (8) TMI 275
  

  Relief beyond the term – enhanced value - Whether the Tribunal was correct in law in granting the relief beyond the terms of the prayer of the assesse in as much as the importer had agreed enhancement to 50% and 25% of the value for calculators with cartons and without cartons respectively and by setting aside the order allowing the appeal and directing the proper officer of the revenue to complete assessment of the goods on the basis of the declared value – Held that :- The order of the CESTAT was confirmed and the Officer concerned was directed to complete the assessment - in the absence of any material evidence the statement made by the assessee for valuation in respect of calculators with cartons and without cartons and the enhancement of the value would be of the order of 50% and 25% respectively assumes significance while arriving at the value for the purpose of adjudication.

  Statement u/s 108 - Whether the Tribunal was correct in holding that the voluntary statement deposed u/s 108 with respect to acceptance of values, cannot be the basis for enhancing the values in the light of the settled law in the case of Surjeet Singh Chhabra Vs. Union of India [1996 (10) TMI 106 - SUPREME COURT OF INDIA] - Whether the CESTAT was justified in directing the Adjudicating Authority to complete the assessment based on the value declared based on the quotation received - The contention of the assesse that the penal action would be harsh and the statement under Section 108 was not of a binding character and that there were no materials to hold that the concession agreed to was only to enable an early clearance cannot be accepted.

  The assessee accepted the enhancement of the value - the assessee himself gave an undertaking that he would produce the manufacturer's invoice - before the Adjudicating Authority, no corroborative material or evidence was placed to substantiate the stand that the value given was based on the documents filed before the Officer - Adjudicating Authority was directed to complete the assessment taking note of the value agreed for enhancement in respect of calculators with cartons by 50% and the calculators without cartons by 25%, but without penal action – Decided against assesse.

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• 2013 (8) TMI 274
  

  Jurisdiction and Power of Enforcement Committee - Whether the Enforcement Committee constituted under the notification had the jurisdiction and power to demand compensation and to levy a penalty – Held that:- The imposition of the penalty does not in the circumstances warrant interference in our extra ordinary jurisdiction under Article 226 of the Constitution - The power to impose penalty was conferred upon the Director-General of Foreign Trade and upon such other officer as the Central Government may by notification in the official gazette authorize in that behalf - Both the notifications constituted an authorisation which was relatable to the power conferred by Section 13 - The Enforcement Committee when it deals with cases involving fraudulent activity, misrepresentation of facts and falsification of documents in connection with obtaining, instituting, utilization or proving the utilisation of quotas had been conferred with a wide power of an all-encompassing nature.

  The Committee noted that the exporter had all along prepared and kept separate documents with the wilful intention of fraudulently getting the EMD released on the basis of forged documents - the Committee noted that none of the Bank realization certificates contained in the CD had been issued by the Bombay Mercantile Co-operative Bank while the entire set of bogus documents submitted for proving the utilization of quotas was shown as having been issued by that Bank - the finding of fabrication and/or fabrication of documents was confirmed and had attained finality.

  Whether the recommendations made by the Enforcement Committee to the Director-General of Foreign Trade was valid – Held that:- Suspension of the Importer-exporter Code Number of the assesse and the further recommendation that the companies in which certain specified persons were partners, proprietors or directors should not be issued an IE Code Number - This was a recommendation made by the Committee - In the event that the DGFT decides to take any action on the basis - he would had to follow due process of law before taking action and to hear the affected persons – Decided against assesse.

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• 2013 (8) TMI 273
  

  Customs duty - Interest – Fine - assesse had imported one brand new car at a declared value (CIF) and an assessable value Customs duty was also assessed - Department was of the view that the Type Approval Certificate had not been issued by an accredited agency in the country of manufacture – Held that:- Differential Customs duty in the case was settled - assesse had already paid the said amount and hence no further liability subsists in this regard - assesse had paid towards interest liability - The accuracy of the interest calculation should be verified by the Revenue and any further amount if payable should be paid - Vehicle was seized and released provisionally to the applicant was found liable to confiscation - The same was ordered to be released on payment of redemption fine- Immunity was granted to the applicant from payment of redemption fine in excess of the above amount.

  Penalty – Prosecution – Bank Guarantee & Bond – Held that:- Penalty was imposed on the applicant and granted immunity from payment of penalty in excess of the amount - assesse was granted immunity from prosecution under the Customs Act - Jurisdictional Commissioner was directed to discharge the bank guarantee and indemnity bond, furnished by the applicant for provisional release of the impugned vehicle, after realizing the above mentioned differential Customs duty, interest, fine and penalty.

  Immunity u/s 127H –Held that:- Immunities were granted u/s 127H (1) - Attention of the applicant was also invited to the provision of Section 127H (2) & (3) - The order of settlement shall be void u/s127C (8) - if the Settlement Commission subsequently finds that it had been obtained by fraud or misrepresentation - Order of settlement applied only to the applicant in the case - It does not apply to other noticees to the Show Cause Notice – Decided in favor of Assesse.

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• 2013 (8) TMI 272
  

  Refund of SAD – Benefit of Notification No. 102/2007 - assessee imported teak wood logs – they were cut into small pieces and sold in the market – revenue was of the view that teak wood logs were converted into small pieces - the classification of the goods were changed – thus the assessee were not entitled for the benefit of Notification No.102/07 - department contended that the assessee had used the goods imported - Held that:- The assessee was entitled for refund of SAD at the rate of 4% - identity of the article did not undergo any fundamental change so as to conclude that what was imported by the assessee was different from the item which ultimately was sold by them in the local market – decided in favour of assessee.

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• 2013 (8) TMI 271
  

  Classification of goods – VIVITEK Projectors - assessee classified the goods under CTH and CETH 85286100 claiming the benefit of exemption under Sr. No. 17 of the Customs Notification NO. 24/2005 – whether the goods were having additional features which make them not classifiable under 85286100 – contention of the revenue is that, The goods are capable of effective use without being attached to a automatic data processing machine as CTH 85286100 claimed by the respondent are available only for those “projectors which are meant for use solely or principally in automatic data processing machine of heading 8471. In these circumstances, these projectors with multiple uses are appropriately classifiable under CTH 85286900.

  Held that:- The projection system cannot be used in isolation but replaces the functionality of a monitor - the projectors merely having additional function cannot be a ground for classifying it other than 85286100 - they cannot be said to be meant for use solely or principally in an automatic data processing system of heading 8471 – court relied upon COMMR. OF CUS. & C. EX., HYDERABAD-II Versus AVECO VISCOMM PRIVATE LTD. (2010 (9) TMI 436 - CESTAT, BANGALORE) and CELETRONIX INDIA PVT. LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI (2006 (12) TMI 38 - CESTAT,CHENNAI) – decided against revenue.

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