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Total - 833

Vessel imported for ship breaking - determination of the value - according to the respondent, an Addendum came to be inserted in the Memorandum of Agreement (MoA) by virtue of the said addendum, the price stood reduced from US$ 9,70,960.23 to US$ 8,70,960.23– revenue’s allegation that addendum is not genuine, is accepted – it appear that said addendum have been executed at the request of the buyer – vessel should be valued at US$ 9,70,960.23 – revenue’s appeal allowed

Cars imported by the respondents from Japan – cars were confiscated on the ground that importers had not submitted Type Approval Certificate/ COP from the accredited agencies as mentioned in Policy Circular No. 26 dated 09.02.2004 – held that it was impossible for the respondents to have fulfilled the condition of submitting the COP from the international accredited agency as said agency had refused to do so - impugned order of Tribunal is justified and hence revenue appeal is dismissed

Whether refund which arose consequential to tribunal’s order of accepting declared value as T.V., not arose out of finalization of provisional assessment, is governed by unjust enrichment – Held, yes because on date of finalization no amount was due to assessee – duty paid by buyer directly on provisional release – since incidence of duty was borne by buyer, not by assessee, assessee have no locus standi on that amount

Refund arisen when found that the machinery imported was entitled to the benefit of concessional rate of duty as per Notification 21/02 - refund claim for a differential excess duty paid - After importation, the machinery was installed in the respondent textile mills and was very much available and being used for manufacture of goods - there is no material to contend that by refund of the differential duty, the respondent has unjustly enriched – refund not deniable on ground of unjust enrichment

Violation of principle of natural justice - When certain documents are relevant and may be beneficial for raising a defence plea, the aggrieved should not be deprived of those documents to meet end of justice – whether Defence is genuine or not, can be tested only when it is raised, not before that – wherever cross examination is necessary, aggrieved cannot be denied for the same

According to the petitioner, the action of the department of issue of Notification no.85/200-09 amounts to infringing the fundamental rights of the petitioner of carrying business and trade – impugned notification prohibiting export of refined oil has been issue to check increase in prices of oil in India – no ground to quash notification – petitioner cannot be given benefit of Not. No. 42/08 dated 1.4.08 because B/E were filed on 14.3.08 i.e. before coming into existence of notification

Spares for project import contract - Import of spare parts on concessional rate of duty under project import contract – spare parts supplied for schedule maintenance & guarantee of operation covered under contract – hence imported spares are indeed covered by the contract - Moreover, import value of the spares is well within the 10% limit specified in the Tariff Heading 98.01 - there is no justification for denying the benefit of concessional assessment under Project Import Regulations

Modular pug – import – revenue sought classification under Heading 8536.90 - lower appellate authority accepted the fact that the goods imported by the appellants were used for connecting the handset with the main set of telephone and hence the same should be classified as an electrical apparatus used in line telephony under Heading 85.17 – decision of lower authority is correct - appellate authority ought not to have travelled out of the ambit of Heading 85.17

Import from Hong Kong - Enhancement of value by custom authorities on basis of photocopies of export declaration made by HongKong authorities – no any other material available to prove that importer-applicant has paid more value than declared – enhancement of value is not justified – moreover appellant’s goods are not of same brand and comparable to goods quoted in declarations

When the exporter had declared the description as plain paper and not as plain paper in cut sizes, it cannot be alleged that there was fraudulent misdeclaration of the description of the goods by the exporter - As the export was under DEPB scheme no consignment would have been cleared for export without detailed examination - Commissioner found the charge of misdeclaration against the appellants without basis - impugned order of confiscation and penalty is set aside arid this appeal is allowed

Duty payable by appellant was adjusted against the voluntary deposit of another party – refund arising when appellant absolved from duty liability which was earlier adjusted from deposit of another party – in this case said duty will be treated as the payment made by appellant – moreover party which had voluntarily deposited the duty has no objection in such refund – hence refund is allowed to be made to appellant

Excess drawback availed by exporter by over-invoicing of goods – goods described as ladies trousers but which were actually found to be used and second-hand worn out garments - allegation on appellants of aiding and abetting the exporting firm – revenue failed to establish that knowledge of over-invoicing was available with the appellants – penalty on appellants u/s 114(iii) on charge of abetting firm in procuring fraudulent higher drawback, is not justified

Seizure of foreign currency form one person - Penalty imposed on appellant on basis of statement of that co-accused that appellant gave that money to him for sending to Dubai – appellant submission is that he has not handed over the money to him, is acceptable - It is well settled law that the statement of co-accused unless corroborated in material particular, cannot be made the sole basis for conviction - personal penalty imposed on the appellant is set aside

Mfg. brass ingots, wire, rods etc. out of imported Dross - Allegation that the appellant (EOU) has cleared segregation generated items Brass Granules to DTA on payment of Excise duty instead of Central excise duty equaling aggregate of duties of Customs – appellant submission that they have not sold the segregated material into DTA but manufactured items by paying 50% of the customs duty as excise duty after permission of sale by Development Commissioner, is correct – demand set aside

Demand of duty on a container on the ground that it was not re-exported within the stipulated period - purpose of requiring the container to be re-exported is only to ensure that containers which are used for bringing goods into India are properly accounted for and in case there is no intention to re-export - There was no need for the Dy. Commissioner to refuse permission for extension of time - Commissioner (Appeals) is right in accepting the proof of re-export & setting aside demand & penalty

Case of the department is that the appellants who are purchasers of glycerine imported duty free from M/s. Shreeji Cosmetics Industries had conspired with the importer for import of raw materials under advance licence and sold thereafter in local market (without utilization in the manufacture of export product – no material produced by revenue to prove conspiracy or involvement of the appellants - penalty imposed on the appellants cannot be sustained and requires to be set aside

Department's Reference is still pending before the High Court – assessee’s application was granted by tribunal even when reference application was pending- Whether Tribunal was right in law in setting aside the order of Collector and directing the refund with interest - No opinion on merits - Since the matter is pending from 1991, we request the High Court to expeditiously decide the said Reference

Maintainability of writ petition against the pre-deposit order of Tribunal - whether the order of pre-deposit is appealable u/s 35 of FEMA – revenue contend that If appeal lies against such an order before HC a writ petition under Article 226 of the Constitution of India on that count would not be maintainable – held that an appeal u/s 35 is not an automatic procedure- writ petition against an order of pre-deposit u/s 35 is clearly maintainable – accordingly revenue appeal is dismissed

Whether Prawn and Shrimps to be considered as ‘Fish’ for levy of export cess under Section 3 of Agricultural Produce Cess Act, 1940 – expression Fish found as item no. 7 not includes Prawns/Shrimps - as per common parlance test, dictionary meanings & expert opinions, Prawns and Shrimps are not same as Fish – impugned question cannot be regarded as question of fact, but can only be regarded as an issue involving interpretation of an entry, which can be regarded as a question of law

Allegations with regard to overvaluation of the goods to claim DEPB credit - wilfully procured inferior fabric from the market and than at the time of export, deliberately overpriced the same at Rs. 60/- per metre - final assessment of the Shipping Bills above at a value of Rs. 16 per metre for DEPB purposes was rightly ordered in impugned order – penalty of Rs. 5,20,000/- has been rightly imposed u/s 114(i) and 114(iii) of the Customs Act – appeal dismissed