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- 2021 (3) TMI 240 - GUJARAT HIGH COURT
MEIS scheme - conversion of the EPCG shipping bill into the EPCG cum Drawback shipping bill - Striking down circular No.36/2010Cus dated 23.9.2010 (i.e. para 3(a) of this Circular) as ultra vires Section 149 of the Customs Act, 1962 and also ultra vires Articles 14 and 19(1)(g) of the Constitution of India - whether the Principal Commissioner committed any error in passing the impugned order? - HELD THAT:- There is no merit in the principal argument of Mr. Dave that in Section 149 of the Act, no time period has been prescribed and if in a substantive statutory provision of law, if no time period has been prescribed, then the CBEC could not have issued the circular providing for three months time period to make a request for conversion from the date of the LEO. Under Rule 3 of the Drawback Rules, a Drawback is allowed on the....... + More
- 2021 (3) TMI 214 - CESTAT CHENNAI
Refund of SAD - non-collection of excess duty paid by the appellant - credit notes - denial of refund on the ground that the test of unjust enrichment not passed on - rebuttal presumption as per Section 28D of Customs Act - HELD THAT:- The certificate of the Chartered Accountant would show that he has examined records and verified as to the details of the refund claim made by the appellant. Further, it is also shown that the amount was reflected in the accounts /balance sheet under the head ‘Customs Refund Receivables’. This would clearly go to establish that the excess duty has not been passed on to the buyers by the appellant From the discussions made by the original authority, and also after perusing the documents enclosed in the appeal, there are no hesitation to agree with the decision of the refund sanctioning authority ....... + More
- 2021 (3) TMI 187 - MADRAS HIGH COURT
Rectification of Mistake - mistake apparent from the records - Application was rejected with the view of Third Member of the tribunal - While, the Judicial Member of the Tribunal held that there had been a mistake apparent from the records and that if the mistake was not rectified, the very purpose of remanding the matter to the Authority would be lost and if the observations were allowed to stand, it would be fatal to the order of assessment. - Power of the tribunal u/s 129B(2) - HELD THAT:- The concept of mistake, which is capable of being rectified under Section 129B(2) of the Act has been explained to mean that it is not confined to clerical or arithmetical mistakes alone. At the same time, the mistake to be rectified must be one apparent from the record and it should not be a mistake, which can be discovered by long drawn reasoning. ....... + More
- 2021 (3) TMI 184 - MADRAS HIGH COURT
Maintainability of appeal - appeal dismissed on the ground that the appellant has no justifiable reasons to bypass the alternative remedy available under the provisions of the Customs Act before the Customs, Excise and Service Tax Appellate Tribunal - HELD THAT:- The issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ Court that the appellant should avail the alternate remedy available under the Act. The Writ Appeal stands dismissed and the appellants are granted 60 days time from the date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is fil....... + More
- 2021 (3) TMI 174 - KARNATAKA HIGH COURT
Imposition of penalty equivalent to duty and interest u/s 114A of Customs Act - Interpretation of Statute - Section 114A of Customs Act - applicability of Circular No.61/2002 issued by CBEC on the adjudicating authorities working under the CBEC - Whether the terms (conjunctions) ‘or’ used in Section 114A of Customs Act, 1962 has to be read as ‘and’ for the purpose of imposing penalty under the said Section? HELD THAT:- The rule 114A of statutory interpretation was referred to by constitution bench of the Supreme Court in INDORE DEVELOPMENT AUTHORITY VERSUS MANOHARLAL AND ORS. [2020 (3) TMI 1310 - SUPREME COURT] - From perusal of the relevant extract of Section 114A, it is evident that the language employed by the legislature is plain and unambiguous and the provision contains a positive condition with regard to lev....... + More
- 2021 (3) TMI 170 - CESTAT BANGALORE
Levy of Penalty on CHA u/s 112 of Customs Act - mis-declaration during the physical examination of the goods - allegation is that the penalty on the ground that the CHA cannot absolve themselves from the wrong doings of the importers and that CHA has colluded with the importer to defraud the Revenue - HELD THAT:- There is no material evidence with the Revenue to come to the conclusion that the appellant had the knowledge of the wrong doing of the importer and has colluded with the importer to defraud the Revenue. It is also found that the importer has also stated in his statement before the Original Authority in reply to Question No.10 that the CHA has filed the Bill of Entry based on the description on the invoice and there is no instruction by the importer to the CHA to do any wrong act. In the absence of any material evidence of knowle....... + More
- 2021 (3) TMI 136 - BOMBAY HIGH COURT
Rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - voluntary disclosure - reason for rejection was mentioned as being ineligible under section 125(1)(f)(i) read with section 121(m) of the Finance (No. 2) Act , 2019 - violation of principles of natural justice - HELD THAT:- For determining eligibility under the category of 'voluntary disclosure', a great deal of discretion is vested on the designated committee, who has to decide eligibility on a case to case basis. Needless to say, when a discretion is conferred upon an authority to decide an issue which has civil consequences upon the party concerned, such discretion has to be exercised in a just, fair and reasonable manner complying with the principles of natural justice. Thus, while deciding eligibility, the designated committee is required t....... + More
- 2021 (3) TMI 129 - MADRAS HIGH COURT
Maintainability of petition - seeking certain clarifications on whether the drones in question would require clearance - HELD THAT:- The Director General of Civil Aviation has, by order dated 21.01.2021, rejected the request of the petitioner. With the passing of this order, the mandamus sought for by the petitioner is not liable to be granted and this writ petition is thus dismissed as infructuous. Liberty is however available with the petitioner to challenge order dated 21.01.2021, in accordance with law.
- 2021 (3) TMI 122 - CESTAT CHENNAI
Levy of Redemption fine and penalty - import of superior kerosene oil - authorization to import kerosene - HELD THAT:- From the judgment of the Hon'ble jurisdictional High Court in Sankar Pandi [2001 (12) TMI 83 - MADRAS HIGH COURT], it is seen that when the goods are re-exported no redemption fine can be imposed. The said decision was affirmed by the Hon'ble Supreme Court in UNION OF INDIA VERSUS SANKAR PANDI [2010 (3) TMI 1247 - SC ORDER]. The Tribunal in the decisions relied by the ld. Counsel for appellant has followed the said decisions to hold that redemption fine cannot be imposed when the goods are released only for the purpose of re-export. Penalty u/s 112(a) of the Customs Act - HELD THAT:- The Commissioner (Appeals) has already taken a lenient view by reducing the penalty from ₹ 4 lakhs to ₹ 2 lakhs. However....... + More
- 2021 (3) TMI 103 - CESTAT MUMBAI
Maintainability of appeal - compliance with the requirement of pre-deposit - Revenue submits that she has sent reminders but failed to receive any report on the issue - HELD THAT:- This Tribunal in similar circumstances, vide Interim Order No.I/127-131/2019 dated 30th July 2019 in appeal Diary No. 870602019 held that Since the order has been set aside by the learned Commissioner (Appeals) for fresh adjudication by the lower authority, therefore, no duty nor any penalty as on date is crystallised against the appellants. Therefore, the pre-deposit, cannot be insisted in accordance with Section 129E of the Customs Act, 1962. Consequently, the defect memo is discharged and the appeals are maintainable, which will be heard in due course. No contrary judgment nor any contrary practice of any other Commissionerates was placed, inspite of sufficient time being allowed to the department - appeal maintainable.
- 2021 (3) TMI 102 - CESTAT MUMBAI
Seeking stay of the order of the adjudicating authority - communication of appeal - Rule 41 of CESTAT (Procedure) Rules, 1982 - HELD THAT:- The appellant had complied with the provisions of Section 129E of Customs Act, 1962 while filing the appeal before this forum challenging the impugned order dated 8th September 2020. Learned Advocate is fair enough to submit that no communication, after filing this appeal before this forum, has been received from the department. Since the law on the subject is very clear, which is also evident from the circular issued by the Board, we find no reason to intervene at this stage as prayed by the appellant. The appellant is free to approach this Tribunal as and when any cause of action arise. Application dismissed.
- 2021 (3) TMI 101 - CESTAT MUMBAI
Maintainability of appeal - non-compliance with the requirement of pre-deposit of the amount - Section 129E of the Customs Act, 1962 - HELD THAT:- On a plain reading of Section 129E of the Customs Act, 1962, it is clear that an appeal cannot be entertained unless the provisions of Section 129E of Customs Act, 1962 has been complied with. The appeal being not maintainable, accordingly, not entertained.
- 2021 (3) TMI 91 - BOMBAY HIGH COURT
Rejection of applications filed under the Merchandise Exports from India Scheme (MEIS) - rejection on the ground of mis-declaration of intent by the petitioner and thereby depriving the petitioner benefit under the said scheme - HELD THAT:- It is an admitted position that petitioner committed an error while filling the shipping bills. Petitioner had actually intended to claim benefit under what is known as MEIS but while filling the shipping bills, petitioner had inadvertently marked “N” (for No) instead of “Y” (for Yes) in the declaration of intent column. Since the EDI system was followed online, corrections could not be done. In the case of non-EDI cases, under the provisions of section 149 of the Customs Act only manual corrections can be made by a party. Respondents' only contention is that since the entir....... + More
- 2021 (3) TMI 84 - CALCUTTA HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Violation of principles of natural justice - validity of Order of adjudication passed by the Principal Commissioner of Customs (Prev.) - HELD THAT:- This Court is of the view that the bar of alternative remedy does not operate in the event an appellable order is challenged on the ground of jurisdiction and violation of principles of natural justice. This issue in the instant case requires more detailed hearing which can be done only after calling for affidavits. Let affidavit-in-opposition be filed within four weeks from date; reply thereto, if any, within two weeks thereafter. Liberty to mention after eight weeks for inclusion in the list under the heading 'Hearing'.
- 2021 (3) TMI 81 - KARNATAKA HIGH COURT
Maintainability of appeal - Section 130 of the Customs Act, 1962 - HELD THAT:- The appeal was admitted by a Bench on the substantial questions of law. The substantial question of law framed in this appeal are answered against the appellant and in favour of the respondent - Appeal dismissed.
- 2021 (3) TMI 36 - BOMBAY HIGH COURT
Seeking provisional release of imported goods - articles of gold i.e. images of different deities which are decorative images made out of gold sheets - Classification of goods under dispute - HELD THAT:- The petitioner had earlier moved the adjudicating authority for provisional release of the imported goods under section 110A of the Customs Act, 1962 on 03.03.2020 but to no avail - it is also found from the writ petition that for import of identical goods for the period from 09.03.2017 to 23.12.2017 and again for the period from 13.01.2018 to 14.06.2018 bills of entries of the petitioner were cleared by accepting identical classification declared by the petitioner. Though a dispute was raised in respect of bill of entry No. 7262799 dated 18.07.2018, however at the intervention of the Commissioner, the imported goods were cleared on bond ....... + More
- 2021 (3) TMI 32 - GUJARAT HIGH COURT
Provisional release of goods - Seeking to allow clearance of used MFDs imported by the petitioner - HELD THAT:- Mr. Shankhesh Mehta, the Joint Commissioner is in contempt of this Court. Mr. Mehta should not have sat in appeal over the order passed by this Court. He could not have been wiser than what has been observed by this Court in the order dated 11th January 2021. If there was any doubt in his mind as regards the correctness of the order of this Court, then he should have consulted Mr. Vyas, the learned Additional Solicitor General of India and Mr. Vyas, in turn, could have preferred an appropriate application before this Court seeking review or modification of the order. However, the Joint Commissioner on his own could not have taken the view that the goods cannot be released. Mr. Mehta, the Joint Commissioner owes an explanation in....... + More
- 2021 (3) TMI 31 - MADRAS HIGH COURT
Maintainability of petition - HELD THAT:- Since an order has been passed against the order which is sought to be implemented in the present writ petition, nothing survives for adjudication in the present writ petition. Therefore, this Writ Petition is liable to be dismissed as infructuous. This Writ Petition stands dismissed as infructuous.
- 2021 (3) TMI 27 - CESTAT CHENNAI
Classification of imported goods - betel nut (Areca-nuts) - classified under CTH 21069030 or under CTH 08028010? - prohibited goods or not - According to appellants the raw betel nut obtained from tree has been subjected to boiling and made ready for human consumption - HELD THAT:- The betel nuts which are ‘whole’ nuts and classifiable under CTH 08028010 are prohibited for import if the CIF value of the goods is lesser than ₹ 251/- per kg. The declared quantity of the goods in appeal filed by Ayush Overseas is 79,520 tons valued at ₹ 89,63,892/- @ ₹ 112.75 per kg. Thus, if the classification is under Chapter 8, the import of these nuts would be against the provisions of law. It is not the case of the appellants that the betel nuts are not ‘whole’. In other words, appellants do not have a case that....... + More
- 2021 (3) TMI 13 - CALCUTTA HIGH COURT
Violation of principles of natural justice - Validity of order of adjudication passed by the Principal Commissioner of Customs (Prev.) - HELD THAT:- This Court is of the view that the bar of alternative remedy does not operate in the event an appellable order is challenged on the ground of jurisdiction and violation of principles of natural justice. This issue in the instant case requires more detailed hearing which can be done only after calling for affidavits. Let affidavit-in-opposition be filed within four weeks from date; reply thereto, if any, within two weeks thereafter. Liberty to mention after eight weeks for inclusion in the list under the heading ‘Hearing’.