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Customs - Case Laws
Showing 21 to 40 of 1198 Records
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2009 (12) TMI 810 - CESTAT BANGALORE
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... ... ..... re does not appear to be any clear cut evidence with reference to their abetment with reference to the export goods in terms of quality, quantity and valuation, their abetment in splitting a single consignment into five different shipping bills is apparent.......... ........... ............... rdquo No willful act by the appellant entailing confiscation of export goods is found in the impugned order. 4. In view of the above finding, allowing this ROM application, will necessarily entail a change in the order of the Tribunal. The order cannot be maintained with a finding that the appellant was not found guilty of having rendered export goods liable for confiscation under Section 113 of the Act. In the light of the observations in the impugned order, it has to be held that penalty could not have been imposed on the appellant under Section 114 of the Act. Accordingly, I allow the ROM application, set aside the penalty and allow the appeal. (Pronounced and dictated in open Court)
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2009 (12) TMI 809 - CESTAT MUMBAI
Imposition of penalty on CHA u/s 114(iii) of the CA, 1962 - goods have been loaded and exported without proper documents i.e. shipping line and LEO - case of Revenue is that it is the duty of the CHA to be vigilant not to load the goods on the vessel without obtaining the LEO and the CHA along with shipping line, both are liable for penalty - Held that: - It is true fact that when the goods are gated in, the goods are beyond the control of the CHA and the exporter - In the instant case, the CHA has informed the shipping line that the shipping bill be handed over at JNPT office as early as possible and the shipping line failed to follow the Customs law, so far that CHA who was not having any control after the goods were gated in, the CHA alone cannot be held liable when the exporter has also been exonerated - penalty set aside - appeal allowed - decided in favor of appellant-CHA.
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2009 (12) TMI 807 - CESTAT CHENNAI
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... ... ..... ing that the assessees have not passed on the burden of duty to their customers and over and above this, the balance sheet shows that the amount is receivable from the revenue authorities. In these circumstances, the decision of the Hon rsquo ble Madras High Court in CCE, Chennai v. Saralee Household and Bodycare India (P) Ltd. 2007 (216) E.L.T. 685 (Mad.) holding that when the non-passing of duty burden has been confirmed by the certificate issued by the Chartered Accountant and the amount of duty paid was kept as receivables from the government in the books of account, refund is admissible, is directly applicable to the facts of the present case and following the ratio of the above judgment, I set aside the direction for credit of the refund amount to the Consumer Welfare Fund and direct that the amount to be refunded to the assessees as they have established that they are not hit by the bar of unjust enrichment, and allow the appeal. (Dictated and pronounced in open court)
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2009 (12) TMI 800 - CESTAT MUMBAI
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... ... ..... l examination in the presence of the appellant. None of the examination reports has been contested by the appellant according to the procedure of law available to them. 7. emsp For the aforesaid reasons, we have to sustain the learned Collector rsquo s order insofar as the valuation of the goods and its confiscability are concerned. The learned Collector determined a fine of over Rs. 13.9 lakhs for redemption of the goods, which, in our view, is harsh in the facts and circumstances of the case. Having regard to the peculiar circumstances of this case, we reduce the quantum of fine to Rs. 5,00,000/- (Rupees five lakhs only). It goes without saying that a penalty of Rs. 5,00,000/- imposed by the Collector is disproportionately high. The quantum of penalty, in the facts and circumstances of this case, gets reduced to Rs. 1,00,000/- (Rupees one lakh only). With this modification, the learned Collector rsquo s order is sustained and the appeal is disposed of. (Pronounced in Court)
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2009 (12) TMI 799 - CESTAT CHENNAI
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... ... ..... he appellants that they were taking all steps to protest against the demand of duty on goods which were not meant for them and, therefore, what was required was only correction in terms of Section 154 or amendment of the Bill of Entry in terms of Section 149 of the Customs Act is not tenable. As rightly pointed out by ld. SDR, this is not a case falling under the provisions of Section 154 of the Customs Act. Section 149 of the Customs Act would also not be attracted for the reason that the assessees did not seek any amendment in the Bill of Entry but only sought for cancellation as seen from the letter dated 26-2-07 of the Asst. Commissioner of Customs. Since the appeal was filed before the Commissioner (Appeals) beyond the statutory period of limitation of 60 days from the assessment, and appeal was filed beyond further period which the Commissioner (Appeals) was empowered to condone, I uphold the impugned order and reject the appeal. (Dictated and pronounced in open court)
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2009 (12) TMI 793 - CESTAT BANGALORE
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... ... ..... ed 10-7-2009, the Asst. Commissioner of Customs (GR.VII) from the office of the Commissioner of Customs, Cochin had sought to invoke bank guarantee to recover Rs. 41,47,582/-. This is despite that there is an appeal pending against the same Order-in-Appeal, which has upheld the Order-in-Original passed by the adjudicating authority. In our considered view, we find that this action of the Revenue to try to invoke bank guarantee would be incorrect, as the appeal is pending disposal. In view of this, we direct the lower authorities not to encash bank guarantee, till the appeal is disposed off, at the same time, we direct the appellant to keep the bank guarantee alive till the appeal is disposed off. Appellant is specifically directed to keep the bank guarantee alive and if he does not keep the bank guarantee alive, then he is liable to deposit the amount of demand confirmed. Stay petition filed by the appellant is disposed off accordingly. (Pronounced and dictated in open Court)
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2009 (12) TMI 791 - CESTAT CHENNAI
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... ... ..... iled speaking order holding that the impugned goods namely inverter/high voltage generator for CT scanner are classifiable under CTH 90.22 and has allowed exemption from additional duty under Central Excise Notification No. 6/2002 (Sl. No. 223A). For coming to this decision she has relied on the HSN Explanatory Notes and has held that Chapter 85 excludes high tension generators and transformers specially designed for supplying radiological apparatus from the coverage of Chapter 85. The departmental authorities have not disputed that the impugned goods is a transformer and that it is designed for a radiological apparatus namely CT scanner. Hence the classification adopted by the lower appellate authority and the exemption granted to the impugned goods cannot be faulted with. Accordingly, the order of the lower appellate authority is upheld and the appeal filed by the Revenue is rejected. (Operative portion of the order was pronounced in open court on completion of the hearing)
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2009 (12) TMI 786 - CESTAT BANGALORE
Classification of imported flavour compounds - classified under CTH 33.02 or 33.01 - benefit of N/N. Sl. No. 119 of Notification No. 21/02-Cus., dated 1-3-02 - Held that: - On a careful reading of the exclusion clause of the notification, it would be clear to qualify for exemption three conditions are to be satisfied i.e., (i) it should be a compound, (ii) it should also be of a kind used for the manufacture of beverages and (iii) the same should have an alcoholic strength by volume exceeding 0.5 percent determined at 20 degrees centigrade. Thus, even though there is no specific mention or explanation either in the chapter heading 33.02 or Section Notes/Chapter Notes in the Customs Tariff from the exclusion clause in Notification No. 21/2002-Cus., dated 1-3-2002, it could be made out as to what the item ‘compound alcoholic preparation’ is - In the instant case M/s GIPL fairly admit in their reply dated 28-2-2007 that the alcoholic strength by volume in the imported flavours in question is exceeding 0.5% and such flavours are used for the manufacture of beverages. However they claim that the Customs exemption Notification No. 76/86-Cus., dated 17-2-1986 explains about “the compound alcoholic preparations”.
There is no doubt that the flavours in dispute comprise of two or more elements, to call them “a compound”. Further, M/s. GIPL have admitted that such flavours are used in beverage industry and the alcoholic strength therein by volume exceeds 0.5%. Accordingly the imported flavours in this case satisfy all the criteria to call them compound alcoholic preparations. M/s GIPL have not advanced any other argument to substantiate their claim that the imported flavours are not compound alcoholic preparations.
The imported flavours impugned in the show cause notice are compound alcoholic preparations and the same are not entitled to concessional rate of duty as provided in Notification No. 21/2002-Cus., dated 1-3-2002 and accordingly, M/s GIPL are liable to pay the differential duty in respect of those flavours.
Commissioner may examine if the appellant was aware of the misdeclaration involved and yet did not bring the same to the notice of the authorities and facilitated misdeclaration of the description of the goods - appeal allowed by way of remand.
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2009 (12) TMI 782 - CESTAT BANGALORE
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... ... ..... s Act and they are acquitted under Section 248(0 of Cr.P.C.A.1 to A.3 are found guilty for the offences punishable under Section 135(1)(b)(ii) and 135-A of the Customs Act and they are convicted under Section 248(2) Cr.P.C.A.1 to A.3 are found not guilty for the offences punishable under Section 132 of the Customs Act. A.1 to A.6 are discharged from the charge framed under Section 135(1)(c) as it is erroneously framd. rdquo 6. It can be seen that the appellants herein are penalized under the Section 114(i) of the Customs Act, 1962. As there is an acquittal by the Special Judge for Economic Offences specifically for the offence as is indicated in the impugned order, we find that the appellants have made out a case for waiver of pre-deposit of penalties imposed by the adjudicating authority on them. Accordingly, application for waiver of pre-deposit of penalties involved is allowed and recovery thereof stayed till disposal of the appeals. (Pronounced and dictated in open Court)
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2009 (12) TMI 780 - CESTAT CHENNAI
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... ... ..... missioner (Appeals) rejected the contentions of the appellants both on merits and on limitation hence this appeal. 2. I have heard both sides. The only plea urged by the appellants is that the demand issued under the provisions of Section 28(1) of the Customs Act, 1962 is barred by limitation. However, I find that this plea cannot be accepted since the present case relates to failure to fulfill the conditions attached to exemption notification and it is not a case of non-levy, short levy or erroneous refund covered by the provisions of Section 28. The appellants are also required to fulfill the commitment in the bond executed by them namely, to pay on demand an amount equal to the difference between the duty leviable on such goods at the time of importation but for the exemption contained in the notification. No argument has been advanced on merits. As the plea of time-bar has no merit, I uphold the impugned order and reject the appeal. (Dictated and pronounced in open Court)
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2009 (12) TMI 779 - CESTAT MUMBAI
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... ... ..... pervision of proper officer of Customs. The shipping line has failed to do so and violated the customs law. Hence, for such an action, they are liable for penalty. The only question before me is what should be the quantum of penalty. 5. I also find that, in an identical issue, in the case of M/s. CSAV Group Agencies (India) Pvt. Ltd. v. Union of India, in Customs Appeal No. 57 of 2009, 2009 (248) E.L.T. 165 (Bom.) the Hon rsquo ble High Court of Bombay vide order dated 15-7-2009 considered that it is a technical breach and the penalty was reduced from Rs. 5 lakhs to Rs. 2 lakhs. I consider that the shipping bills and the LEO were finally obtained by the shipping line and in that event such an excessive penalty should not be imposed. Following the principle laid down by the Hon rsquo ble High Court in the case of CSAV Group Agencies (supra), I reduce the penalty to Rs. 2 lakhs. With this observation, the appeal is partly allowed with consequential relief. (Pronounced in Court)
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2009 (12) TMI 777 - CESTAT CHENNAI
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... ... ..... of 100 tons is upon fax dated 5th May rsquo 99 from the company in Italy to the assessees stating that they are giving incentive based target (minimum of 100 tons per annum) and allowing a price reduction of 30 - 20 trade discount and 10 commission to the assessees to develop their leather dyestuff to compete with the existing leading competitors in India. However, we are required to see whether the assessees have fulfilled the requirement as per the agreement entered into by them with the UK company as authorized by the company in Italy. There is no dispute that the assessee lifted 60 tons of goods made under the Italy company trade mark from the UK company within the 1st year i.e. upto 31-12-2000. Therefore, there is no reason not to allow this discount of 20 . We, therefore, set aside the impugned order insofar as it loads the value to the extent of 20 , and allow the appeal by holding that 20 discount is admissible to the assessees. (Dictated and pronounced in open court)
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2009 (12) TMI 776 - CESTAT MUMBAI
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... ... ..... the date of such redemption. It was this condition which was voluntarily complied with by the appellant. In the circumstances, as rightly submitted by the learned SDR, there can be no challenge to the redemption fine determined by the Commissioner. Further, I find that the penalty was imposed by the Commissioner not as a condition attached to the re-export of the goods, but as an independent penal measure under Section 112 (a) of the Act in connection with the order of confiscation. Obviously, the learned Commissioner determined the amount of penalty in exercise of his discretion in the facts of the case. Considering the amount of fine determined by the Commissioner, a penalty of Rs. 50,000/- cannot be said to unreasonable. Moreover, there is no exceptional ground stated by the appellant to interfere with the exercise of discretion by the Commissioner. In the result, both the fine and penalty have only to be sustained in this case. The appeal is dismissed. (Dictated in Court)
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2009 (12) TMI 775 - CESTAT NEW DELHI
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... ... ..... n. It is only Mohd. Hassan, a person accompanying the goods, who had stated that the scrap is of a Nepalese origin, but the owner of the goods subsequently stated that the scrap had been collected from neighbouring places in India. Moreover, the statement of Shri M.Hassan is an exculpatory statement merely mentioning that scrap is of a Nepalese origin loaded in the truck by Shri Alauddin and hence merely on the basis of this statement, it cannot be concluded that the scrap was of Nepalese origin when there is no marking on any piece of scrap regarding the country of its origin. Just because the challan was bearing the date of 26-1-05 or that the seizure had been made in the midnight of 25/26-1-05 at a place near the Indo Nepal Border, it cannot be concluded that the scrap loaded in the truck had come from the Nepal. In view of the above discussion, I do not find any infirmity in the impugned order. The Revenue rsquo s appeals are dismissed. (Order dictated in the open Court)
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2009 (12) TMI 774 - CESTAT CHENNAI
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... ... ..... opying apparatus operated by reproducing the original image via intermediate onto the copy falls for classification under CTH 84433930. Applicants have also prima facie satisfied us that although the disputed items are digital copying machines, they are different from electrostatic photocopiers. Therefore, prima facie, goods in question do not require a licence for valid import and therefore prima facie the importers have not contravened the provisions of Section 111(d). We, therefore, waive predeposit of the penalty and stay recovery thereof pending the appeal. Since the goods are still in the custody of the customs authorities, there is no requirement of obtaining waiver of predeposit of the duty, as per the provisions of Section 129(E) of the Customs Act, 1962. 3. The Misc. application for release of the goods and the early hearing application are adjourned to 11-1-2010, awaiting clarification sought by customs authorities from DGFT. (Dictated and pronounced in open court)
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2009 (12) TMI 761 - CESTAT CHENNAI
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... ... ..... in the case of Bansal Alloys and Metals Pvt. Ltd. v. CC, Amritsar - 2009 (240) E.L.T. 483 (P and H), that it is the responsibility of the assessing/proper officer to re-assess and correctly determine duty leviable in accordance with law. In the present case, since the benefit of S. No. 436 of Notification No. 21/2002 dated 1-3-2002, has been claimed by the assessees, it was required by the assessing/proper officer to examine this claim and extend the benefit if otherwise found leviable. Since, this has not been done, I set aside the impugned order and remit the case to the original authority to examine the claim of the importers for benefit of exemption in terms of S. No. 436 of Notification No. 21/2002 dated 1-3-2002, and the assessment is modified by extending the benefit herein above claimed. Thereafter, it is open to the importers to claim the refund of differential duty paid. The appeals are thus allowed by way of remand. (Order dictated and pronounced in the open Court)
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2009 (12) TMI 756 - CESTAT NEW DELHI
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... ... ..... agrees that a copy of balance sheet is available at page 63 of the appeal record depicting the amount of Rs. 3,96,681/-. But he supports the reasoning of the Commissioner (Appeals) for the order passed. 3. Heard both sides and perused the records. 4. There is no disagreement that the material portion of records has been perused by both sides today to the extent stated above. Realizations made by assessee towards sales proceed does not provide scope to presume that duty element was passed on by the assessee to customers. It is followed practice to adopt certificate of chartered accountant in the matter of refund unless that is liable to be ignored for any cogent reason or evidence showing contrary. Therefore, evidence on record to the extent indicated above, having provided ground in favour of the appellant, that does not call for upholding first Appellate order. 5. In the result, the appeal of the assessee is allowed setting aside impugned order to the extent indicated above.
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2009 (12) TMI 755 - CESTAT CHENNAI
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... ... ..... e this appeal by the Revenue. 2. We have heard both sides. We find that the amendment was carried out by the DGFT in the DEEC licence granted to the importers so as to match description of the consignment imported. We, therefore, agree with the finding of the lower appellate authority that the difference in ratings as declared and ratings available on the imported goods are not to be considered as misdeclaration with the intention to evade duty so as to warrant confiscation and penal action. We, therefore, uphold the impugned order and reject the appeal. 3. The cross-objection is only in the nature of comments upon/reply to the Revenue rsquo s appeal and is therefore dismissed. (Dictated and pronounced in open Court)
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2009 (12) TMI 754 - CESTAT MUMBAI
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... ... ..... of hearing sought by the party was declined by the Commissioner. It was felt that such opportunity ought to have been granted to them. It was in this scenario that the Commissioner rsquo s order was set aside and the case remanded to him for de novo adjudication in accordance with the principles of natural justice. As rightly pointed out by the learned S.D.R., an opportunity of being heard was given to the party by the Commissioner. But the party wanted a further opportunity to be heard, which was declined. The rule of natural justice requires that a ldquo reasonable opportunity rdquo of being heard should be given to an aggrieved party. In our final order, the reasonability of the opportunity granted by the Commissioner was assessed and accordingly he was directed to grant one more opportunity of being heard to the party. We do not think that, in such a view, there is any mistake rectifiable under Section 129B(2) of the Act. The application is dismissed. (Dictated in Court)
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2009 (12) TMI 751 - CESTAT NEW DELHI
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... ... ..... 0-05 clearly shows that the goods were not of Nepalese origin. Therefore, there is misdeclaration of the origin of the goods. The report of the Joint Director, Plant Protection, Quarantine and Storage clearly held that the consignment has the danger of spreading harmful pest in India. In such a situation, the order of the original authority in ordering absolute confiscation and destruction of the imported goods under the provisions of Clause 3(16) of Plant Quarantine (Regulation of Import into India) Order, 2003 cannot be faulted. Therefore, the order of the Commissioner (Appeals) in upholding such absolute confiscation and destruction is legal and proper. Under these circumstances, the question of acceding to the prayer for refund of the value of the goods does not arise. There is no provision for refund of value of the goods which have been imported and ordered to be destroyed in view of the danger of spreading pest in India. 7. In view of the above, the appeal is rejected.
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