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Customs - Case Laws
Showing 41 to 60 of 84 Records
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2009 (5) TMI 673 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Classification of goods ... ... ... ... ..... ld that the goods cannot be confiscated and fine in lieu of confiscation cannot be imposed if the goods are not available for confiscation (excluding the cases where the goods are initially seized and provisionally released). Similar view was taken by the Tribunal in the case of Chinku Exports v. Commissioner of Customs, Calcutta - 1999 (112) E.L.T. 400 (T), which decision has been upheld by the Supreme Court as reported in 2005 (184) E.L.T. A36 (S.C.). Therefore, confiscation of the goods on this count and ordering their release on payment of redemption also does not appear to be sustainable. 12. emsp The applicants have made out a strong case for stay of the operation of the impugned order passed by the Commissioner. We accordingly stay operation of the impugned order and dispense with the pre-deposit of the duty and interest demanded and penalty imposed and stay recovery thereof pending disposal of appeal. We also stay recovery of the redemption fine. (Pronounced in court)
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2009 (5) TMI 671 - CESTAT, CHENNAI
... ...
... ... ..... the case of Priya Blue Industries Ltd. v. CC (P) 2004 (172) E.L.T. 145 (S.C.) and CCE, Kanpur v. Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) held that a refund claim contrary to the assessment cannot be entertained unless the assessee successfully challenged the assessment. In view of the above ratio laid down by the apex Court we hold that the refund claim of the appellants cannot be allowed. The appeal is dismissed. 3. emsp Ld. Counsel submits that the importer could seek amendment of the Bill of Entry in terms of Section 149 of the Customs Act and the same could be assessed extending the benefit now. He prays that the lower authorities may be directed to entertain such an application. We observe that the appellants have an option to seek amendment of the subject Bill of Entry in terms of Section 149 of the Customs Act and direct that the proper officer of customs shall consider the same and dispose it in accordance with law. (Dictated and pronounced in open Court)
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2009 (5) TMI 660 - CESTAT, CHENNAI
Demand - Exemption notification, partial fulfilment of ... ... ... ... ..... had been fulfilled in this case). The appellants do not dispute the liability to pay the duty but only seek proportionate reduction of central excise duty on the ground that in one appeal, one of the conditions of the notification had been fulfilled. 2. emsp We are unable to bring ourselves to accept this request for the reason that both conditions are required to be fulfilled for extension of the benefit of the notification. Since admittedly, only one of the conditions stipulated in the notification was fulfilled, there is no merit in the plea of the appellants for proportionate reduction of the duty demanded. Therefore we uphold the impugned order and reject the appeals. (Dictated and pronounced in open court)
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2009 (5) TMI 657 - CESTAT, MUMBAI
Remand - Power of remand of Commissioner ... ... ... ... ..... further referred the Commissioner of Central Excise, Gurgaon v. Matrix Clothing Pvt. Ltd., 2008 (224) E.L.T. 599 (Tri.-Del.) , wherein it was held that the Commissioner (Appeals) has no power to remand the matter to adjudicating authority as the same has been withdrawn by amending Section in 2001. 11. emsp Heard and perused the records. 12. emsp I have gone through the provisions of law and found that the Commissioner (Appeals) himself is competent to pass appropriate order after considering the documents placed before him. Instead of passing the said order, the Commissioner (Appeals) sent back the case to the adjudicating authority for further consideration of the documents, which is not appropriate as per the provisions of law. 13. emsp I hereby direct the Commissioner (Appeals) to pass an appropriate order after considering the documents placed before him within three months from the receipt of this order. 14. emsp Accordingly, the appeal is allowed. (Pronounced in Court)
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2009 (5) TMI 654 - CESTAT, KOLKATA
Boric Acid - Import for use in manufacture of glassware and kitchenware ... ... ... ... ..... case-law relied upon by the Department in the case of Jaysun Enterprise, Rakesh K. Shah and Anilbhai Kaneria v. CC (Imports), Raigad - 2009 (238) E.L.T. 373 (Tri. - Mum.) 2008-TIOL-2191-CESTAT-MUM, relates to a case where the import was in excess of the quantity against which a registration certificate was obtained for import of boric acid for manufacture of insecticides. Learned Advocate also states that the appellants have obtained a certificate from the Central Glass and Ceramic Research Institute to the effect that the impugned imports are for non-insecticidal use. Hence, the decision in Jaysun (supra) is not applicable to their case. 3. emsp In view of the facts of this particular case, where the import is not for insecticidal use, and following the ratio of the earlier decision in the case of Hardware Trading Corporation (supra), we set aside the impugned Order and allow the appeal with consequential benefit to the appellants. (Pronounced and dictated in the open court)
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2009 (5) TMI 648 - CESTAT, KOLKATA
Confiscation - Issue involving re-classification of goods - Appeal by Department ... ... ... ... ..... ommissioner not to confiscate the goods already released does not require any interference, since differential duty has been demanded and penalty has been imposed. 3. emsp The second issue raised by the department is regarding payment of interest in view of the fact that the Commissioner has passed no orders in this regard. However, we find that it is now settled law that the interest as payable under the law can be recovered by the department and no separate order is required to be issued in this regard. On this count also, the department rsquo s appeal does not survive. 4. emsp Thirdly, the department is aggrieved by dropping of the proceeding against three other noticees. However, we find that no separate appeals have been filed against other three noticees and hence, there are no appeal relating to these noticees on which the Tribunal is required to pass any order. 5. emsp Accordingly, the department rsquo s appeal is dismissed. (Dictated and pronounced in the open Court)
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2009 (5) TMI 647 - CESTAT, KOLKATA
Natural justice - Violation of ... ... ... ... ..... that the said instruction dated 9-7-04 was not made available to the appellants before passing the impugned order nor the same has been cited in the impugned order. 5. emsp In view of the admitted fact that the specific charge against the appellants has not been communicated to them before passing the impugned order nor the instruction dated 9-7-04 now produced by the ld. DR has been referred to in the impugned order, the impugned order cannot be sustained. Hence, the impugned order is set aside and the matter is remanded to the adjudicating Commissioner for communicating the exact charge against the appellants to them including the relied upon RBI regulations/instructions and for re-adjudicating the case after giving an adequate opportunity of hearing the appellants. It would be open to the appellants to make appropriate submissions in their defence before the adjudicating authority. 6. emsp The appeal is allowed by way of remand. (Dictated and pronounced in the open Court)
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2009 (5) TMI 646 - CESTAT, NEW DELHI
Marble or limestone - Classification of ... ... ... ... ..... 43 of the appeal folder demonstrates that the goods imported having been subjected to test and that was found to be lime stone, we are unable to understand how the ld. appellate authority came to conclusion otherwise when technical expert rsquo s report dated 23-2-06 exists. We do not find merit in the order passed by the ld. Commissioner (Appeals). We also notice here that the respondent is in third round of litigation. Absence of respondent shows no consciousness of exercising right to remedy before a legal forum when Revenue came in appeal against him. Notice issued to the respondent has come back with remarks ldquo left rdquo . We allow Revenue rsquo s appeal for the aforesaid reasons restoring the Order-in-Original in toto. We do not find any cross-objection on record in respect of the Revenue rsquo s appeal. Absence of the respondent cannot be taken as a pleading in future to consider the cross object, if any, filed by the respondent. (Order dictated in the open Court)
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2009 (5) TMI 642 - CESTAT, CHENNAI
Appeal to Commissioner - New plea - Misdeclaration ... ... ... ... ..... f appropriate fine and penalty. Hence this appeal by the importers. 3. emsp We have heard both sides. We find that the case of the department as reflected in the adjudication order is that brass scrap was misdeclared as mixed metal scrap and it is for the first time in appeal before the Commissioner (Appeals) that the Revenue alleged that the goods were brass wire and hence their value was to be further enhanced from the enhancement by the adjudicating authority. The importers were never put on notice that the goods imported by them were to be treated as brass wire and, therefore, learned counsel for the appellants is correct in his contention that a new ground was raised by the Revenue before the lower appellate authority which is not proper in law. 4. emsp We, therefore, set aside the impugned order and allow the appeal by accepting the prayers of the appellants for restoration of the adjudication order. 5. emsp The appeal is allowed. (Dictated and pronounced in open court)
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2009 (5) TMI 632 - CESTAT, MUMBAI
Show cause notice - Redemption fine and penalty ... ... ... ... ..... hether incorporated or not. It is of course contended that this definition does not apply to a firm which is not a natural person and has no legal existence, as such clauses (3), (8) and (37) of Section 167 of the Sea Customs Act are inapplicable to the appellant-firm. In our view, the explanation to S.23-C clearly negatives this contention. In that a company for the purposes in that section is defined to mean any body corporate and includes a firm or other association of individuals and a Director in relation to a firm means a partner in the firm. rdquo Thus according to the Supreme Court judgment, (supra), company or firm is a person. Therefore, the penalty has been rightly imposed on the appellants. The decisions of the Tribunal cited by the appellants are per incuriam and do not have precedential value. 10. emsp I do not find any infirmity in the orders passed by the lower authorities below. The same are upheld and the appeal is rejected. (Pronounced in court on 4-5-2009)
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2009 (5) TMI 626 - CESTAT, NEW DELHI
Rectification of Mistake - Typographical mistake ... ... ... ... ..... the cause title was clearly shown as Ms. ETCO Telecom Ltd. v. Commissioner of Customs, Amritsar, the applicant being appellant and later being the respondent. It is not known how in order dated 6-10-08, the cause title was changed as CC, Amritsar to be the applicant and M/s. ETCO Telecom Ltd. as respondent. It is always the duty of the stenographer typing the order to ensure that the cause title is properly typed in every order. Registrar to issue necessary notice to the stenographer who had typed the order dated 6-10-2008 seeking his/her explanation for wrong typing of cause title and seek explanation within 6 days to be placed before the President of the Tribunal. Notice to be issued by the Registrar within 3 days. 2. emsp The Cause title being wrongly typed in order dated 6-10-08, the same is ordered to be corrected and should be read as under - lsquo M/s. ETCO Telecom Ltd. as applicant and Commissioner of Customs, Amritsar as respondent. rsquo 3. emsp Ordered accordingly.
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2009 (5) TMI 556 - PUNJAB & HARYANA HIGH COURT
Smuggling of arms – recovery of weapons from petitoner’s baggage - petitioner was not acquitted of the charges under Section 25 of the Arms Act merely on the technical grounds - Non-sealing of the arms and handing over the same without sealing to other person a serious defect in case and leads this Court to draw the inference that it can not be said by the certainty that the weapon so produced by the Custom Officer could not be said to be the same as recovered from the petitioner - absence of the report of Armour - judgment passed by Additional Sessions Judge has become final as no further appeal or revision has been preferred against the said judgment of acquittal, therefore, the same having probative value could be relied upon to decide the fate of the case which arose out of the same transaction and is based upon the recovery of the same weapons which were allegedly recovered from the petitioner - principle of stare decisis certainly applicable to the facts of the present case - Bail bond and surety bond furnished, stand discharged
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2009 (5) TMI 554 - CESTAT, NEW DELHI
Pre-deposit - Penalty - right of appeal granted to a litigant is conditional under the law - no absolute right to press for hearing the appeal on merit without fulfilling condition of pre-deposit - facts and circumstances of the cases does not suggest whether they have fulfilled the conditions - On this ground appeals call for dismissal
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2009 (5) TMI 523 - CESTAT NEW DELHI
Penalty - to director, Company Secretary, Non-working Director, Custom House Agent - Held that - evidence on record not bring out any commission or omission on any persons part rendering the impugned goods liable to confiscation. Penalty set aside on all persons.
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2009 (5) TMI 517 - PUNJAB AND HARYANA HIGH COURT
Smuggling-prosecution- Complaint in the present case was filed by the Assistant Collector, Customs Division, Amritsar. A BSF party consisting of M.S. Raghawa, Assistant Commandant, Devi Dutt, Driver, and other officials held a special naka at India- Pakistan Border and at a distance of about 300 meters of the Border, they apprehended Harvinder Singh with Indian currency notes of Rs. 13,56,000/- . The BSF party also recovered three chits written in Urdu on exercise book paper from possession of Harvinder Singh which furnish details regarding the persons who indulge in smuggling of gold in the territory of India and exchange foreign currency with gold. On 29-8-1985, Avtar Singh was arrested. Held that- recovery of more than Rs. 13 lakh in 1985 huge and such huge amount cannot be planted on petitioner. No explanation for roaming near border with huge amount. Trial pending for 24 years and delay taken into account to reduce sentence from two years to one and half year.
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2009 (5) TMI 512 - CESTAT, BANGALORE
EXIM-EPCG Scheme- Notification No. 44/2002-Cus., dated 19-4-2002- The two cars have been imported under the EPCG Scheme. The fact that the goods have been imported and put to use by the appellant is not in dispute. The violation pointed out by the revenue are only technical in nature for example, one of the objections is that they had not produced the installation certificate. Normally, the EPCG Scheme generally deals with the machineries and in respect of machineries imported, normally they are to be installed. But the case of the car is peculiar. The car is a transport vehicle and in respect of car, to obtain an installation certificate may not be appropriate. Moreover, the registration as a passenger vehicle and not as tourist vehicle has also been explained by the appellant as the amendment came only later. These are all only been explained by the appellant as the amendment came only later. These are all only technical violation for which the exemption cannot be denied. Moreover, based on the information submitted by the appellant, the JDGFT authorities have accepted their contention and issued the Export Obligation Discharge Certificate. In these circumstances, there is no warrant for taking action against the appellant. Further, the ingredients for invoking the longer period are also not available in this case.
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2009 (5) TMI 500 - CALCUTTA HIGH COURT
Violation of export and import code- The petitioner was previously a Government of India Undertaking and after the process of disinvestment it is now controlled by its management. The petitioner is engaged in the business of manufacture and sale of E.M.U coaches, wagons, heavy cranes, etc. and in course of its business undertakes both import and export activities. For the purpose of such activity on 20th June, 1990 the petitioner was allotted an Import-Export Code bearing no. 0290000211 (for short “I.E.C”). In the usual course of business the petitioner is required to import components and parts for E.M.U. coaches, cranes, wagons etc. The agent of the petitioner filed necessary documents with the customs authorities for its release. On 23rd/24th February, 2009 the agent of the petitioner was informed that the import could not be completed as the I.E.C. was not functioning. On 25th and 26th February, 2009 the agent of the petitioner informed the petitioner that I.E.C. of the petitioner had been suspended by the respondent authorities. Since due to non-release of the goods the petitioner was severely prejudiced and as the particulars could not be provided by the agent, in the first week of March, 2009 the petitioner made enquiries with the authorities, but without any effect. On 18th March, 2009 a letter demanding justice was issued, but it went unheeded. Aggrieved, the writ petition was filed. In the light of the various decisions held that- Hence, as the petitioner gave an undertaking, was given opportunity to represent, knew about the statutory consequences of non-payment of penalty and as suspension is consequential and in view of the provisions contained in Section 11(4), no further opportunity to represent or hearing is required before an order of suspension under the Act is passed. Therefore, the writ petition is dismissed.
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2009 (5) TMI 495 - KERALA HIGH COURT
Prosecution- Conviction- petitioner was convicted for offence under Section 135(1) (i) of the Customs Act and was sentenced thereunder to undergo R.I. for a term of one year and to pay a fine of Ks. 20,000/- and in default to undergo simple imprisonment for a further term of three months with right of set off under Section 428 of the Cr. P. C. held that- when there is no reliable evidence regarding the purity of gold and any convincing evidence regarding its value, the conviction of the petitioner under section 135(1)(i) of custom act is unsustainable. Conviction of petitioner altered from section 135(1)(i) to section 135(1)(ii). Prosecution- sentence- whether sentence awarded to the petitioner in the circumstances is sustainable. Held that- it is not a fit case where sentence of imprisonment is to be awarded to the petitioner especially when the prosecution has no case that he is a habitual offender engaged in such illegal import of gold.
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2009 (5) TMI 477 - CESTAT, BANGALORE
Refund- unjust enrichment- The appellants filed a refund claim against the excess duty paid where the Notification benefit was denied. The same was rejected by the Adjudicating Authority. Against such an order, appellant moved in appeal before the Commissioner (A), who allowed the appeal by remanding the matter back to the Adjudicating Authority to reconsider the claim to the extent of quantity already consumed, after verifying all the aspects. The Adjudicating Authority passed an order sanctioning the refund claim, but credited the same to the Consumer Welfare Fund. Held that- burden of duty was passed on and importer was not entitled to refund. In the absence of any evidence to show that the amount has not been recovered from the customs, we find that the impugned order passed by the Commissioner (Appeals) is correct.
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2009 (5) TMI 473 - KERALA HIGH COURT
Confiscation of car- Misdeclaration of value- Respondent imported a custom made Ferrari car from Singapore on a declared value of US $ 70000. The marine insurance value of the car was US $ 107395. In view of the difference, the department investigated the matter. It is seen that assessment is on a value of UK Stg PDS 80,07,659. The respondent filed appeal to the Commissioner of Customs (Appeals) who dismissed the same. The department on conclusion of investigation ordered confiscation of the vehicle and released it on payment of redemption fine of Rs. 7.5 lakhs and personal fine of Rs. 2.5 lakhs. Against the order of Commissioner (Customs), the respondent filed appeal before the Tribunal which was heard along with the appeal filed by the respondent against assessment of duty at higher amount. The Tribunal though confirmed the valuation adopted by the department for the purpose of levy of duty, cancelled the confiscation order for the reason that there is no misdeclaration of value justifying confiscation under Section 111(d) and 111(m) of the Customs Act. The department filed this appeal against the order of the Tribunal cancelling confiscation order and release on payment of redemption fine for the reason that there is misdeclaration of value. Held that-Respondent has not produced evidence for the payment of even the invoice value. Tribunal’s order reversed and confiscation order upheld. However, redemption fine reduced and personal penalty set-aside.
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